0120081046
02-11-2011
Cecelia J. Williams, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Cecelia J. Williams,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081046
Hearing Nos. 451-2006-00161X
451-2007-00121X
Agency Nos. 8Z0J06034
8Z0J06009
DECISION
On November 26, 2007, Complainant filed an appeal from the Agency's
November 20, 2007, 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 the EEOC Administrative Judge's (AJ)
findings of fact are supported by substantial evidence.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Clinical Nurse, GS-610-09 at the Agency's Kelly Family Practice Clinic
(Kelly) at Lackland Air Force Base, Texas at the time of events giving
rise to this complaint. On January 24, 2006, she filed an EEO complaint
in which she alleged, in relevant part, that the Agency refused to
accommodate her disability (post-traumatic stress disorder or PTSD2) even
though management had knowledge of her condition and how it affected her
in the workplace. The Agency accepted the complaint for investigation.
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 AJ. Complainant requested a hearing,
thus her case was forwarded to the appropriate EEOC District Office and
assigned to an AJ.
The AJ assigned to the case held a hearing on August 27 and 28 and
September 4, 2007, and on September 28, 2007, issued a decision in
favor of the Agency. The Agency thereafter issues a final order fully
implementing the AJ's decision.
The AJ found the following relevant facts. See Administrative Judge's
September 28, 2007, Decision. Complainant was initially hired by
the Agency on October 22, 2001. In December 24, 2004, due to staffing
issues, Complainant was transferred from the Wilford Hall Medical Center
(which was overstaffed) to Kelly. Upon arriving at Kelly, Complainant was
assigned to a team of six providers (physicians, physician's assistants,
nurses, medical technicians, and administrative personnel). Each provider
was responsible for the care of 1800 enrolled beneficiaries.
In early January 2005, Complainant saw a professional counselor
(Counselor) because of "severe stress and anxiety" stemming from her
reassignment to Kelly. The Counselor issued a report which indicated that
Complainant experienced very deep depression which affected her ability
to work "at capacity" due to the lack of a stable working environment
and the fact that she was not previously consulted about being moved
to Kelly. In April 2005, Complainant's physician (Physician) diagnosed
her as suffering from "job stress" and indicated she needed to change
her position from "direct provider support to possibly pre-operation
physical, teaching or quality assurance chart reviews."
Sometime in April 2005, Complainant informed her supervisor (Supervisor)
that she had been diagnosed with PTSD. This was regarded as a request
for accommodation. The Supervisor asked Complainant to produce
documentation of her condition. In response, Complainant provided
the Supervisor the reports she had received from the Counselor and
the Physician. The Supervisor contacted the Personnel Office and was
advised to request of Complainant a fitness for duty examination (FFDE).
Complainant underwent the examination, which involved a review of her
medical records and a discussion with Complainant's psychologist, on
April 22, 2005.
At the conclusion of the FFDE process, the Agency's doctor (Doctor)
concluded that Complainant was capable of continued employment
at Kelly with some accommodation. The Doctor noted that because
of Complainant's difficulties in concentration with multitasking,
she would perform better with clearly defined individual tasks.
He indicated that those tasks could consist of education, triage, or
telephone consults as opposed to tasks which required that Complainant
perform them simultaneously. The Doctor indicated that Complainant was
able to meet the functional requirements of her Clinical Nurse position,
both medically and psychiatrically, with the recommended accommodations.
He noted that Complainant was not an imminent risk to self or others and
could continue in her direct patient care role. He also noted that she
would need continued evaluation from her psychologist.
In response to the FFDE, at the end of April 2005, the Supervisor
tasked Complainant with retrieving telephone messages off the "nurses'
line." In this capacity, Complainant was expected to listen to recorded
messages, write down the information obtained therein, and distribute the
messages to the appropriate nurse or doctor for action. The Supervisor
believed this limited duty assignment was consistent with the Doctor's
recommendations.3 The Supervisor, particularly during the latter part
of 2005, kept Complainant abreast of the Agency's attempts to find
alternative employment for her, including the possibility of modifying
her nurse position.
In October 2005, management requested that Complainant be placed
in the Lackland Medically Restricted Program (LMRP), which allowed
Complainant to be considered for positions base-wide. On November 8,
2005, Complainant informed the Personnel Office, the unit responsible
for the LMRP, that she was only interested in positions in which she
could maintain her current pay grade. Further, she requested to be
advised of her retirement options and a computation of her annuity.
On December 1, 2005, the Agency offered Complainant a Food Service
Worker, WG-7408-02, position with retained pay. Complainant did not
accept the offer and viewed it as demeaning and insulting considering
her education qualifications and medical experience. On February 1,
2006, the Agency offered Complainant a job as a Clinical Nurse at the
Wilford Hall HIV Clinic. Complainant accepted the offer on a conditional
basis and requested an extension to respond beyond the February 9, 2006,
reply deadline. Complainant also requested that she be assigned to the
day shift so she would not have to drive in the dark.
On February 1, 2006, Complainant was evaluated by a licensed psychologist
(Licensed Psychologist), who reported to the Agency that the Food
Service Worker and the Clinical Nurse (HIV) positions were not a suitable
placement for Complainant at that time. On March 2, 2006, the Agency
withdrew its job offer for the HIV nurse position. On June 8, 2006, the
Personnel Office indicated that despite Complainant's placement in the
LMRP, its efforts at finding her a job were unsuccessful. On July 28,
2006, the Agency issued Complainant a notice of proposed removal for the
inability to perform the full scope of her duties as a Clinical Nurse.
On August 14, 2006, the Licensed Psychologist, making reference to
proposed removal, indicated that she was not aware of any limitations
that would prevent Complaint from performing her duties as a nurse.
She further indicated that Complainant was capable of clinical assessment,
triage, telephone contact, medical support, and all other required
skills. She also indicated that Complainant was able to multitask
at a level that would be required in a busy clinical environment. The
Licensed Psychologist then requested that Complainant be considered for
assignment to a clinical team so she could resume her nurse duties and
responsibilities in a supportive environment.
In light of this information, the Agency ceased its efforts to remove
Complainant from employment and informed her that she had to undergo a
one-month refresher orientation, and complete certain required training.
She was given instructions regarding matters including leave usage
and attendance. On September 25, 2006, Complainant resigned.4
Based on these facts, the AJ issued a decision on September 28,
2007, in which he found that Complainant had not been discriminated
against, as alleged. The Agency's final order adopted the AJ's ruling.
Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
The parties' contentions on appeal relate to the merits of their
respective positions, and are essentially those made before the AJ.
As such, we will not address any contentions separately; they are
inherently addressed in our analysis and findings below.
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. 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 for 29 C.F.R. Part 1614 (MD-110), Chap. 9,
at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
As an initial matter, we assume without so finding that Complainant
is an individual with a disability. An agency must provide reasonable
accommodation to the known physical or mental limitations of qualified
applicants or employees with disabilities unless it can demonstrate
that the accommodation would impose an undue hardship on the operations
of its program. 29 C.F.R. � 1630.9(a) & (b). An employer may choose
among reasonable accommodations so long as the chosen accommodation is
effective. EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (RA Guidance),
Notice No. 915.002, Q. 9 (revised Oct. 17, 2002). An employer need not
provide an employee's preferred accommodation as long as the employer
provides an effective accommodation. Lathum v. U.S. Postal Serv., EEOC
Appeal No. 01A53430 (Aug. 22, 2006).
A review of the evidentiary record reveals that the AJ's findings of
fact are supported by substantial evidence. We now determine whether
the AJ correctly applied his findings to law. We note that the AJ found
that Complainant was not an individual with a disability but that is
immaterial to our analysis, as he also determined that Complainant,
even if disabled, was not denied an accommodation.
Specifically and in relevant part, the AJ found that once Complainant
requested an accommodation and underwent an FFDE, the Agency relieved
Complainant from having to perform the full range of nursing duties and
assigned her the task of retrieving and distributing messages to the
appropriate physicians and nurses. The AJ found this was not intended to
be a permanent position for Complainant but noted that when the Agency
mentioned other jobs Complainant found reasons not to accept them.
For example, he noted that Complainant turned down a Food Worker Service
position at retained pay because she believed the position was demeaning,
and did not accept the Agency's offer to be reassigned as a Clinical
Nurse in another facility because she did not want to work nights.
He also noted the Supervisor's efforts to keep Complainant fully
informed and engaged while the Agency sought ways Complainant could be
accommodated. The AJ concluded that Complainant was not entitled to the
precise accommodation she wanted, and noted that the Agency was free to
choose among any number of accommodations so long as they were effective.
There is some indication that Complainant was unable to perform the
duties of the positions offered by the Agency; however, the Agency was
not made aware of this until after the offers were extended. The record
shows that the Agency worked with Complainant and her doctors to locate a
position within Complainant's restrictions but to no avail. We are not
convinced by Complainant's argument that the Agency could have found
a suitable position for her by looking at modification rather than
reassignment. There is substantial evidence in the record to support
the AJ's finding that the Agency considered efforts to possibly modify
Complainant's position but the nature of her job made that impossible.
As noted above, Complainant is not entitled to her accommodation of
choice; the accommodation she was given (i.e., having her work at a
nurse station and retrieve, record and distribute telephone messages
to appropriate medical personnel), which lasted from April 2005 until
she retired over one year later, was an effective accommodation as it
allowed Complainant to work within her medical restrictions.
While the accommodation Complainant was accorded was temporary (as
shown by the Agency's continual efforts to find Complainant work or a
position within her restrictions), there is no evidence that the Agency
could have placed Complainant into a position for which she qualified.
In this respect, "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. Accordingly, the Agency was required, as it
did, to consider reassignment. See RA Guidance; see also 29 C.F.R. Part
1630.2(o).
In cases of reassignment, Complainant has an evidentiary burden in
such reassignment cases to establish that it is more likely than
not (preponderance of the evidence) that there were vacancies
during the relevant time period into which she could have been
reassigned. Complainant could have established this by producing evidence
of particular vacancies. In the alternative, Complainant could have shown
that: (1) she was qualified to perform a job or jobs which existed at
the agency, and (2) there were trends or patterns of turnover in the
relevant jobs so as to make a vacancy likely during the time period.
Complainant failed to produce evidence of either.
CONCLUSION
Accordingly, after a thorough review of the record, we find that the AJ's
findings of fact are supported by substantial evidence, and that his
application of the law to those facts is legally sound. We therefore
discern no basis to disturb the AJ's decision, and therefore we AFFIRM
the Agency's final order implementing that decision.
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 (Nov. 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
February 11, 2011
Date
1 In addition to finding no failure to accommodate, the AJ also found
Complainant was not subjected to a hostile work environment on the basis
of disability or retaliated against for prior EEO activity. Complainant
specifically opted not to appeal those findings. Thus, our review is
limited solely to what we have identified as the "issues presented."
2 Complainant described her PTSD as interfering with her ability to
focus and remember. According to her, she experienced flashbacks,
which became frequent during times of high stress. She struggled on a
daily basis with a combination of symptoms from depression and anxiety.
Increased stress, work overload, and overwhelming work exacerbated
her condition. Report of Investigation, Complainant's Affidavit.
3 On July 5, Complainant's FFDE report was amended to restate the
conditions already reported and to add Complainant's history of chronic
back, neck and jaw pain. The report also indicated that Complainant's
medical situation was permanent and that her return to full duty was
unexpected. From July through December 2005, Complainant experienced
problems performing her limited duties. For example, some messages were
not properly noted or distributed timely. Complainant also frequently
went to personal medical appointments without ensuring proper coverage
of the nurses' line. At times, Complainant did not request or secure
permission to take leave before taking off from work. When medical
appointments were approved in advance, Complainant would exceed the
authorized time or not return to work at all.
4 Complainant cited a litany of incidents of harassment by her co-workers
and indicated she was not resigning voluntarily. Complainant's
resignation relates to her hostile work environment claim, which she
chose not to appeal.
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0120081046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081046