01974411
11-24-1998
Lynn P. Wakefield, Appellant, v. Togo D. West, Secretary, Department of Veterans Affairs,) Agency.
Lynn P. Wakefield v. Department of Veterans Affairs
01974411
November 24, 1998
Lynn P. Wakefield, ) Appeal No. 01974411
Appellant, ) Agency No. 94-0643
v. ) Hearing No. 280-96-4062X
Togo D. West, )
Secretary, )
Department of Veterans Affairs,)
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission from a final
agency decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted pursuant
to the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant was discriminated against on the
basis of her disability (major depression) when: (1) she was required to
undergo a fitness for duty examination ("FTE") prior to being permitted
to return to work after a medical leave of absence; (2) she ultimately
was not permitted to return to work until October 25, 1993; (3) she was
reassigned form one installation to another; (4) her work hours were
reduced from 25 hours per week to 20 hours per week; and (5) her work
profile of 30 minutes, variable, was changed to 20 minutes, non-variable.
BACKGROUND
The facts of this matter are extensively set forth in the record and are
only summarized herein. Appellant's instant complaint was accepted by
the agency, which complied with all procedural prerequisites. Appellant
timely requested and received a hearing before an EEOC Administrative
Judge ("AJ"). The record reflects that, prior to her retirement in March
1996,<1> she was employed in a part-time capacity as a Psychiatrist.
From January 19, through June 21, 1993, appellant took a medical leave
of absence. During this period, appellant underwent treatment for
major depression.
All agency physicians and clinicians must be credentialed and privileged
to work at the agency and at the applicable facility. The credentialing
and privileges process must be renewed every two years. The credentialing
process requires submission of the employee's education, experience and
background; the privileging process includes a certificate of health. In
April 1993, appellant's credentials and privileges had expired and
were due for renewal. At that time, appellant submitted all necessary
forms except for the health certificate; she stated that she would defer
submission of that form until she was able to return to work. Normally,
the health certificate is signed by the applicant and the Chief of the
Service (the "Chief"). After appellant sought to return to work, the
Chief informed her that she had arranged for someone unconnected with
the agency to conduct an FTE and to sign appellant's health certificate.
The board certified psychiatrist designated by the Chief began the
examination of appellant in August 1993, and completed the examination
in September 1993. Appellant was found fit for duty.
In the recommended decision ("RD") issued by the AJ, the AJ found
that appellant was an individual with a disability as defined by 29
C.F.R. �1614.203. The AJ was not persuaded by appellant's contention that
the agency discriminated against her when it sought information from her
personal physician regarding her diagnosis and the approximate length of
necessary leave. In addition, the AJ found that the agency acted properly
in requiring appellant to submit to an FTE prior to returning to duty as
a practicing physician after she was absent for five months for treatment
for depression. Insofar as the Chief arranged for an outside party to
perform the FTE, the AJ noted that there was a personality clash between
appellant and the Chief, and was not persuaded that the decision to bypass
the agency's clinical staff constituted discrimination, particularly as
this action avoided subsequent allegations of a conflict of interest.
Insofar as appellant challenged the delay between the date appellant
sought to return to duty (June 1993) and her actual return to duty
(October 1993), the AJ noted that this delay was partly caused by the
psychiatrist's schedule and her determination that five sessions were
needed to complete the evaluation of appellant. The AJ was unable to
"conclude that the delay was either excessive or caused by" the Chief.
RD at 18.
Upon her return, appellant was reassigned from the John Cochran facility
to the Jefferson Barracks facility. The AJ found that the length of
appellant's absence had necessitated the reassignment of her patients
to other physicians. In addition, during appellant's absence, Jefferson
Barracks lost two physicians. The AJ was unpersuaded that the legitimate,
nondiscriminatory reasons articulated by the agency for reassigning
appellant from John Cochran to Jefferson Barracks were a pretext to mask
discrimination.
At Jefferson Barracks, appellant sought to work the 25 hours per week
she had worked at her original facility. However, Jefferson Barracks did
not have an emergency room and did not require psychiatric services after
4:30 pm. The AJ found that the agency did not reduce appellant's hours,
but rather that appellant caused the reduction of hours by refusing
an offer to start at an earlier time or to work on Thursdays. The AJ
found that the agency did not reduce appellant's hours, but rather that
appellant caused the reduction of hours by refusing an offer to start
at an earlier time or to work on Thursdays. The AJ noted that appellant
did not dispute that Jefferson Barracks' schedule was different than the
schedule at John Cochran, or that she was given an opportunity to fit a
25 hour per week schedule into Jefferson Barracks' schedule. Rather,
appellant contended that it was "the fault of the agency" that her
schedule did not fit that of Jefferson Barracks and "that this problem
would not have occurred but for her disability." RD at 22. However,
inasmuch as her reassignment to Jefferson Barracks was not found to
be discriminatory, the AJ found that appellant's failure to fit her
schedule to the schedule at Jefferson Barracks "can[not] be attributed
to any alleged unlawful motive on the part of the agency." RD at 23.
Appellant also challenged her assigned clinic profile at Jefferson
Barracks. At John Cochran, appellant had a clinic profile of 30 minutes,
variable. This meant that her patients automatically were scheduled for
every 30 minutes, and that a clerk scheduling a patient who needed to be
seen for 60 minutes could automatically block out 60 continuous minutes
without having to reenter the patient's name for every 30-minute block.
At Jefferson Barracks, appellant was assigned a clinic profile of
20 minutes, non-variable. Thus, appellant automatically was assigned
patients every 20 minutes; in addition, a clerk scheduling a patient who
needed to be seen for more time would have to input the patient's name and
other information for each 20-minute block. The agency contended that it
was changing its system to require all care providers in the psychiatric
service to have a clinic profile of 20 minutes, non-variable. However,
the AJ noted that from appellant's reassignment to Jefferson Barracks in
October 1993 until shortly before the hearing in April 1996, none of the
other health care providers were actually put on this profile. Given that
the agency had neither changed the profiles of other providers over some
reasonable time period nor required other newly assigned providers to
utilize a profile of 20 minute, non-variable, the AJ was not persuaded
by this argument. The agency also argued that appellant's difficulties
with the 20 minute profile stemmed from her chronic tardiness and her
allegedly unduly long appointments. However, the AJ found that the
record (including appellant's performance appraisals and other material)
"contains not one shred of evidence that this was a problem" concerning
appellant's supervisors. RD at 25. Therefore, the AJ found that the
assignment of a clinic profile of 20 minutes, non-variable, was based
upon an unlawful discriminatory motive.
Because the clinic had since changed the profile of all health care
provides to 15 minutes, and because appellant had retired from the
agency, the AJ noted that no prospective relief was available. However,
appellant contended that her discriminatorily-assigned profile had forced
her to work late and beyond the normal hours of the clinic. Although the
agency asserted that appellant had been specifically told not to work
beyond the clinic's hours, the AJ was persuaded that, had appellant
not done so, she may have been found wanting for failing to properly
attend to her patients. Accordingly, as relief, the AJ recommended that
appellant should present to the agency evidence of hours worked beyond
the normal clinic hours from October 25, 1993, until the date of her
retirement (March 1, 1996) and that the agency should then determine
the appropriate amount of back pay and other benefits due pursuant to
29 C.F.R. �1614.501.
In its FAD, the agency adopted the RD insofar as it found that appellant
had not been subjected to discrimination with respect to allegations (1)
through (4). However, the FAD rejected the RD insofar as it found that
appellant had been subjected to discrimination when she was assigned a 20
minute, non-variable profile (allegation (5)). The agency acknowledged
being aware of appellant performing work beyond the normal clinic hours.
In this regard, the agency notes that clerks were instructed to leave at
4:30 regardless of whether appellant was still working because it did not
wish to pay the clerks overtime. In addition, the Case Manager often
stayed late because he was reluctant to leave appellant alone with the
predominately male patients and felt that his presence provided security.
While the Case Manager apparently never sought or received overtime or
compensatory time for these hours, he received a memorandum from the
Administrative Officer instructing him not to stay beyond his tour of
duty unless officially approved to do so. A Program Analyst received
similar instructions and wrote a response to the Administrative Officer
which stated that he would continue to stay late to provide security for
appellant "as a matter of conscience." Nonetheless, the agency maintains
that there was very little difference between the profiles, and that
appellant was 30 to 40 minutes late for work two out of the three days she
worked and spent too much time with her patients. The agency contends
that the AJ should not have questioned its actions merely because the
project to change the profiles took longer than originally projected.
While conceding that a psychiatrist hired in January 1994 was assigned
a 30 minute profile, the agency distinguishes that psychiatrist on
the basis that he worked in the Senior Veterans Clinic rather than the
Mental Hygiene Clinic. The agency states that, by January 1996, all
but two psychiatrists were on a 15 minute profile. The agency asserts
that appellant's chronic tardiness was not discussed in her performance
appraisals because it "was a conduct issue, not a performance issue"
and her tardiness was not made the subject of "formal action ... because
she did eventually see all of her patients before leaving."
In any event, the agency contends that it is not liable for back pay
for the hours appellant worked beyond her scheduled hours. First, the
agency states that physicians, as Title 38 employees, are exempt from
the Fair Labor Standards Act provisions which require overtime payments
for working unscheduled hours beyond a set tour of duty. However, the
agency also notes that appellant's former supervisor at John Cochran
"testified that occasionally he would ask for comp time for his doctors,
but that it was hard to get dollars." Second, the agency again asserts
that it was appellant's chronic tardiness and her spending of excessive
time with her patients that caused her to work late and that the agency
"should not be penalized because [she] chose to [arrive late and to]
spend more time with patients." Third, the agency states that it
repeatedly instructed appellant not to work late and claims it is not
responsible for her voluntary decision to do so in disregard of agency
policy, which caused problems for the scheduling clerks and others.
Finally, the agency contends that appellant essentially transferred
her duty hours of 9:00 to 5:30 at John Cochran to Jefferson Barracks,
where her scheduled duty hours were 8:00 to 4:30.
On appeal, appellant's counsel includes a copy of the written closing
arguments submitted to the AJ and contends that the AJ erred in failing
to find that appellant was subjected to discrimination with respect
to allegations (1) through (4). The appeal brief argues that the
FAD improperly rejected the RD insofar as it found that appellant was
subjected to discrimination when she was assigned a 20 minute profile.
The appeal stresses that the profiles of all of the physicians in the
Psychiatric Services were not changed to a 15 minute, variable until
after appellant retired and contends that her responsibilities were
not distinguishable from those of the newly appointed physician in
the Senior Veterans Clinic. The brief states that the clerks did not
always see appellant arrive and that her supervisor observed appellant
arriving on time. Counsel contends that appellant was not irresponsible
by staying past her tour of duty and that the time she spent with her
patients, the length of the evaluations, and the quality of her work
was within the norms of the American Psychiatric Association guidelines.
Appellant objects that she worked five hours of overtime per week, that
she wishes to be paid for that time, and that this issue is not moot.<2>
In its comments on the appeal, the agency maintains that its FAD correctly
found no discrimination.
ANALYSIS AND FINDINGS
The Commission notes that the positions of the parties were clearly and
persuasively argued before the AJ, both during the hearing and in the
parties' post hearing briefs. After a careful review of the record,
the Commission is unpersuaded by either the agency's or the appellant's
criticisms of the RD. The Commission finds that the AJ properly
determined that appellant was not subjected to discrimination when
she was ordered to undergo an FTE; by the alleged delay in conducting
that examination; by her assignment to Jefferson Barracks; and by being
given a 20 hour work week. In addition, the Commission finds that the
AJ properly determined that appellant was subjected to discrimination
when she was assigned a 20 minute, non-variable profile. In this regard,
the Commission is unpersuaded by the agency's contention that the Fair
Labor Standards Act precludes liability for back pay for the hours
appellant worked beyond her scheduled hours. Here, the Commission is
merely ordering that appellant be provided with appropriate relief for
the agency's discriminatory and disparate treatment of appellant in its
assignment of a 20 minute, non-variable profile. The Commission defers
to the judgment of the AJ with respect to the agency's contention that
it was appellant's chronic tardiness and her spending of excessive time
with her patients that caused her to work late. Despite the agency's
arguments to the contrary, the Commission finds that the AJ, who had the
opportunity to observe the witnesses, also properly considered the lack of
support for these contentions in the agency's records in determining that
the agency was not credible on this point. See, e.g., Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). It is also noted that the record clearly establishes that
the agency was well aware that appellant was working after her scheduled
tour of duty hours.
Accordingly, in order to remedy appellant for its discriminatory conduct,
the agency shall grant appellant back pay for the excess hours worked
each week. In this regard, to the extent that the agency argues that
appellant merely substituted time after the end of her scheduled tour
of duty for time at the beginning of her scheduled tour of duty,
the Commission notes that the AJ properly instructed appellant to
present evidence of the hours she worked in excess of 20 hours per week.
The Commission agrees that appellant is not entitled to payment for any
hours merely transferred from the beginning of, to after the close of,
her scheduled tour of duty.
CONCLUSION
After a thorough review of the record and the arguments on appeal
(including arguments and evidence not specifically addressed herein),
it is the decision of the Commission to REVERSE the FAD insofar as
it found that appellant failed to establish that she was subjected to
discrimination on the basis of disability in the agency's assignment of
a 20 minute, non-variable profile. Accordingly, the agency is directed
to comply with the following ORDER. However, the Commission AFFIRMS
the FAD insofar as it found that appellant failed to establish that she
was subjected to discrimination on the basis of disability: when she
was ordered to undergo an FTE; by the alleged delay in conducting that
examination; by her assignment to Jefferson Barracks; and by being given
a 20 hour work week.
ORDER (D1092)
The agency is ORDERED to take the following remedial actions:
(1) Within 90 days of appellant's submission of evidence of her having
worked in excess of 20 hours per week during any part of the period
from October 25, 1993 until the date of her retirement, the agency
shall determine the appropriate amount of back pay and other benefits
due appellant, pursuant to 29 C.F.R. �1614.501. Appellant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to appellant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
(2) The agency shall conduct training for its supervisory personnel
at its Jefferson Barracks facility, St. Louis, Missouri, regarding
their obligations under Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C.�791 et seq.
(3) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Jefferson Barracks, St. Louis,
Missouri, facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
Nov 24, 1998
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Appellant's retirement from the agency is not at issue here.
2 Insofar as the appeal questions whether the agency rejected the RD
within the 60 day period prescribed by 29 C.F.R. �1614.110, the Commission
finds that the FAD was issued timely.