01991475
03-14-2002
Joann F. Hamner, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Joann F. Hamner v. Department of Veterans Affairs
01991475
3/14/02
.
Joann F. Hamner,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01991475
Agency No. 97-1365
Hearing No. 220-97-5304X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Registered Nurse at the agency's
Medical Center in Brecksville, Ohio, filed a formal EEO complaint on
February 7, 1997, alleging that the agency had discriminated against
her on the bases of disability (cervical radiculapathy), and reprisal
for prior EEO activity when:
(1) she was assigned tasks exceeding the limits of her light duty
status; and
she was charged with being Absent Without Official Leave (AWOL) following
absences related to her disability, and a request for light duty.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of disability discrimination. Specifically, the AJ found that
complainant failed to demonstrate that she had a disability as defined
by the Commission's Regulations. In that regard, the AJ noted that
complainant suffered an on the job injury to her shoulder, elbow, and
right side of her neck on June 9, 1996. Complainant was offered a light
duty assignment within her physical restrictions, which included no
lifting over five pounds with her right arm, and no pushing or pulling
with her right arm. Complainant returned to full duty in April 1997.
Accordingly, the AJ found complainant had a temporary condition, which
is usually not considered a disability.
The AJ found that complainant established a prima facie case of reprisal.
Specifically, complainant had engaged in prior EEO activity, of which her
supervisor was aware, and within close enough proximity to the actions
alleged here to establish a causal connection. However, the AJ also
found the agency articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the AJ found all nursing management
personnel, as well as the charge nurse who distributed the assignments,
collectively testified that complainant was not given assignments outside
of her light duty restrictions. Furthermore, the Nurse Manager testified
she issued complainant an AWOL charge when complainant failed to bring
in proper documentation to support an absence from January 3, 1997 �until
further notice.� The Nurse Manager testified she permitted complainant to
exhaust her sick leave balance from January 3, 1997 through January 24,
1997, but then charged complainant with AWOL when she failed to provide
sufficient medical documentation.<1>
The AJ found complainant failed to establish, by a preponderance of
the evidence, that the agency's reasons for its actions were a pretext
for discrimination. In that regard, the AJ found complainant failed to
show that reprisal was the real reason for her AWOL charge, as opposed to
insufficient documentation. Furthermore, the AJ found complainant failed
to show she was assigned duties outside of her restrictions. Rather, the
AJ noted that the evidence revealed complainant chose to work outside of
her restrictions, without complaint, after being instructed not to do so.
On November 9, 1998, the agency issued a final decision that adopted
the AJ's decision. Complainant makes no new contentions on appeal,
and the agency requests that we affirm its final decision.
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.
In order to establish a prima facie case of failure to accommodate, one
must establish that she is an �individual with a disability� as defined
by the Regulations. EEOC Regulation 29 C.F.R. � 1630.2(g) defines an
individual with a disability as one who: 1) has a physical or mental
impairment that substantially limits one or more of that person's major
life activities, 2) has a record of such impairment, or 3) is regarded as
having such an impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i)
defines "major life activities" as including the functions of caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
Complainant also must show that she is a "qualified" individual with a
disability within the meaning of 29 C.F.R. 1630.2(m). See also Cleveland
v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999).
The term qualified individual with a disability means, with respect
to employment, a disabled person who, with or without a reasonable
accommodation, can perform the essential functions of the position
in question. See 29 C.F.R. � 1630.2(m).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Even,
assuming, arguendo, that complainant is a qualified individual
with a disability, we find substantial evidence in the record that
complainant was accommodated with duties within her medical restrictions.
The overwhelming evidence in the record reveals complainant chose to
work outside of her restrictions. As such, we find complainant failed to
establish the agency did not provide her with a reasonable accommodation.
As for complainant's reprisal claim, we note that complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity. Rather, the preponderance of the
evidence reveals complainant was issued AWOL when she failed to submit
proper documentation to support her absence. We discern no basis to
disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
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
3/14/02
Date
1A portion of this absence was due to complainant's recovery from gall
bladder surgery.