0120070774_Westbrook
03-10-2009
Darlene Westbrook, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Darlene Westbrook,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070774
Hearing No. 35D-2004-00243X
Agency No. 994274200M1019
DECISION
On November 22, 2006, complainant filed an appeal from the agency's
October 16, 2006 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of the events first arising in this complaint, complainant's
permanent position was as a Nursing Assistant at the agency's VA Medical
Center in Sheridan, Wyoming.
Complainant has a pacemaker to assist her with cardiac issues.
Additionally, on April 12, 1991, complainant experienced an on-the-job
injury which resulted in two knee replacements. Complainant's physician
then placed permanent physical limitations on complainant, such as no
lifting more than 10 pounds, no walking up stairs, and no squatting,
stooping, or kneeling. Complainant does not contest that after she
recovered from the total bilateral knee replacement surgery, she could no
longer perform the essential functions of the Nursing Assistant position,
with or without a reasonable accommodation. As a result, in 1998, as a
reasonable accommodation complainant was detailed to a Time and Leave
Clerk position where she could perform the essential functions of the
position.
In May and June of 1999, all staff at the facility was notified that
there was going to be a reduction in force (RIF).
On June 17, 1999, complainant was officially notified that she was unable
to meet the physical requirements of the Nursing Assistant position,
and as a reasonable accommodation, she was offered the Time and Leave
Clerk position on a permanent basis. Complainant was told that if she
accepted the position she would be entitled to indefinite pay retention,
even though the position was listed as a lower grade than her Nursing
Assistant position. Complainant accepted the position. Complainant
asserts that she was offered this position as a form of harassment,
because the agency was aware that the position was targeted for RIF.
The agency denies agency officials knew that the position would be
targeted for a RIF at the time it was offered to complainant.
Because the Time and Leave Clerk position was going to be abolished
under the RIF, the agency offered complainant a File Clerk position,
which complainant accepted. However, after complainant raised concerns
over whether she could perform the essential functions of the position,
the agency staff physician determined that she could not perform the
essential functions of the File Clerk position, with or without a
reasonable accommodation. Specifically, the physician found that if
complainant lifted more than 10 pounds, kneeled, squatted, or walked
up steps, her knees would shatter and she would have to have surgery.
The essential functions of the position required repetitive kneeling
and squatting, as well as lifting, stooping, and walking up steps.
The physician determined that complainant therefore was not qualified for
the position. Complainant asserts that the agency should have reasonably
accommodated her in this position.
In a meeting during July 1999, the topic of wages was addressed. It was
revealed that, prior to complainant's injury, she worked a schedule
of nights, Sundays, and holidays. After her injury she was switched
to a Monday through Friday day-shift. As a result of the switch,
complainant lost wages. The Acting Chief of Human Resources management
(HRM) acknowledged that complainant should be receiving compensation for
the lost wages, and stated that she would review complainant's OWCP file.
In November 1999, complainant was compensated for the lost wages.
On or about October 30, 1999, complainant received a Notice of Separation
by RIF, effective December 31, 1999. Because of her disqualifications,
the agency was not able to find a vacant position for which complainant
was qualified that would have prevented her from being subjected to
the RIF. In order to ensure continued medical coverage, complainant
elected to retire early, effective December 31, 1999.
Meanwhile, on August 4, 1999, complainant filed a formal EEO complaint
alleging that she was discriminated against and harassed on the bases
of disability (bilateral knee replacement and cardiac problems), age
(DOB: 3/4/43), and in reprisal for prior protected EEO activity when:
1. In July 1999, she learned that OWCP should have reimbursed her for
medication, lost wages, and lost holiday and Sunday pay;
2. In June 1999, she received a standard 30-60 day Notice of Proposed
Reduction in Force (RIF); and
3. On July 8, 1999, she was permanently offered a Time and Leave Clerk
position with pay retention when in fact the position was identified as
abolished on the RIF list, she was offered a demotion to a File Clerk
position, and subjected to other terms and conditions of employment
which ultimately led to her constructive discharge.
On December 3, 1999, complainant filed another formal EEO complaint
alleging that she was discriminated against and harassed on the bases
of disability (bilateral knee replacement and cardiac problems), age
(DOB: 3/4/43), and in reprisal for prior protected EEO activity when:
1. She was offered a part-time Ward Clerk position;
2. Management failed to fill the position of Secretary of Nutrition and
Food Service and Chaplain Service with her or some other employee who
might otherwise be separated due to the RIF;
3. On September 7, 1999, she was asked by the Acting Chief of HRM to
sign a letter that she could not perform the duties of File Clerk, GS-4;
4. Even though she had accepted the reassignment to the File Clerk
position, she was found medically disqualified for the File Clerk position
and was left in the Time and Leave Clerk position which was to abolished
by the RIF;
5. On or about September 7, 1999, the Acting Chief of HRM denied her
the information and/or forms needed for the Federal Retirement System
and the OWCP;
6. On or about October 30, 1999, she received a Notice of Separation by
RIF, effective December 31, 1999;
7. On or about November 4, 1999, her Senator's office was informed that
she was "technically absent without leave";
8. On or about November 5, 1999, she was denied advanced sick leave and
was not provided with guidance on the requirements for leave coverage;
9. On or about November 8, 1999, she was told by HRM that her listing as
"disqualified" for several positions on the RIF results was "because of
your disabilities";
10. The effective date of her RIF was unfavorable to her; and
11. Her early retirement, effective December 31, 1999, was in fact a
constructive discharge.
The agency accepted the complaints in their entirety, consolidated them,
and conducted an investigation. Upon completion of the investigation,
complainant was notified of her right to request a hearing before an
EEOC Administrative Judge (AJ) or to request a final decision from the
agency. Complainant requested a hearing before an AJ, who determined
that complainant's constructive discharge claim rendered the complaint a
"mixed case" complaint, and therefore remanded the decision to the agency
for further processing.
On November 27, 2001, the agency issued a final decision finding
no discrimination. The agency notified complainant of her right
to appeal the decision to the Merit Systems Protection Board (MSPB).
Complainant appealed to the MSPB, and on July 31, 2003, the MSPB issued
a decision finding that complainant's retirement was not a constructive
discharge within its jurisdiction. Complainant petitioned the Commission
for review, and on October 28, 2004, we denied her petition but remanded
the complaint to the agency to be processed as a "non-mixed" case.1
The agency referred the complaint back to the EEOC for appointment
of an AJ. On July 26, 2005, the agency filed a Motion to Dismiss
the Complaint, or in the Alternative, a Motion for Summary Judgment.
On September 6, 2005, the AJ denied the agency's Motion. On January 9,
2006, the case was reassigned to a new AJ as a result of the original
AJ's retirement from the Commission. On February 9, 2006, the agency
submitted a Motion for Reconsideration for Summary Judgment. On September
26, 2006, the new AJ found that a hearing was not necessary and issued a
decision without a hearing. The AJ found that complainant had failed to
establish that the agency failed to reasonably accommodate her. Further,
the AJ found that complainant was reasonably accommodated, and that she
failed to establish that she was subjected to discrimination or harassment
as alleged. On October 16, 2006, the agency issued a final order adopting
the AJ's decision. Complainant now appeals to the Commission.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
Timely Appeal
The agency asserts that complainant's appeal is untimely because her
representative received the final agency decision more than 30 days
prior to the date that complainant filed the appeal. As set forth in
EEOC Regulation 29 C.F.R. 1614.402 (a), appeals to the Commission must
be filed within thirty calendar days after a complainant receives the
agency decision. EEOC Regulation 29 C.F.R. 1614.402(b) provides that, if
the complainant is represented by an attorney of record, the 30 day time
period shall be calculated from the receipt of the required document by
the attorney. Here, the record discloses that complainant's representative
is not an attorney. Therefore, the time for filing the appeal begins
to toll the day complainant received the final agency decision, not the
day her representative received the final agency decision. Further,
the record reveals that complainant received the final agency decision
on October 23, 2006, and complainant's appeal is postmarked November
22, 2006. As a result, complainant's appeal is timely.
Summary Judgment
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. See 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
Complainant avers she was not given a comprehensive summary of undisputed
facts. However, we note that complainant was given a comprehensive
statement of undisputed facts in the agency's Motion for Summary Judgment.
Complainant responded to the Motion, and did not controvert the facts,
with one minor exception that the AJ noted in his decision. We agree
with the AJ that no material facts are in dispute. Further, complainant
was given ample notice of the proposal to issue a decision without a
hearing, and she had the chance to engage in discovery before responding.
Therefore, we find that summary judgment was not inappropriate in this
case.
Reasonable Accommodation
Complainant asserts that the agency should have accommodated her in the
File Clerk and the Nursing Assistant positions. Under the Commission's
regulations, an agency is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual
with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation
includes modifications to the manner in which a position is customarily
performed in order to enable a qualified individual with a disability to
perform the essential job functions. Enforcement Guidance - Reasonable
Accommodation. The Rehabilitation Act of 1973 prohibits discrimination
against qualified disabled individuals. See 29 C.F.R. � 1630. In order
to establish that complainant was denied a reasonable accommodation,
complainant must show that: (1) she is an individual with a disability,
as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual
with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3) the agency
failed to provide a reasonable accommodation absent undue hardship.2 See
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act, EEOC No. 915.002 (October 17, 2002).
The agency concedes, and we assume without finding, that complainant is an
individual with a disability within the meaning of the Rehabilitation Act.
Next, complainant must establish that she is a "qualified individual with
a disability," which is defined as an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. � 1630.2(m).
We find that complainant failed to establish that she is a qualified
individual with a disability. First, complainant acknowledges on
appeal and in her affidavit that she could not perform the essential
functions of the Nursing Assistant position with or without a reasonable
accommodation; therefore, she is not qualified for that position. As for
the File Clerk position, the agency's physician avers that complainant's
complete limitation on kneeling and squatting prohibited complainant from
performing the essential functions of the position because repetitive
kneeling and squatting was required. 3 The position requires complainant
to access files, which are located in file cabinets. All of the file
cabinets have shelves that are near the floor and complainant would
have to repetitively kneel, stoop, or squat to retrieve the files.
Additionally, the position required heavy lifting of the files and
walking up multiple stairs. In a letter to her supervisor, complainant
stated that the functions of this position required "everything that
went against [her] doctor's orders." Further, complainant failed to
identify an accommodation that would have allowed her to perform the
essential functions of the File Clerk position. Therefore, complainant
was not "qualified" for the position as defined by the Rehabilitation Act.
Additionally, the record supports the agency's assertion that there were
no other vacant positions for which complainant was qualified that the
agency could have placed her in. Therefore, we find that the agency
did not fail to reasonably accommodate complainant's disability.
Disparate Treatment and Harassment
Complainant alleges that she was disparately treated and harassed
based upon her disability, age, and in reprisal for prior protected
EEO activity. To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a prima facie case of hostile environment harassment,
complainant must show that: (1) she is a member of a statutorily
protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work
environment. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Here, we will assume for the sake of argument that complainant established
her prima facie cases of disparate treatment and harassment. The agency
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the Director and the Human Resources Program Analyst both
testified that when complainant was offered the Time and Leave clerk
position, it was not known that the position would be abolished in the
RIF. The issues surrounding complainant's lost wages were honest errors
and were corrected in November 1999. The interaction with complainant's
Senator's office was for the purpose of getting complainant her proper
pay. The agency offered complainant the part-time Ward Clerk position
in an attempt to find alternative employment options for complainant.
The Secretarial position with Nutrition and Food Service and Chaplain
Service was not vacant, and complainant was not qualified because the
position was a GS-5 and she was a GS-4. Complainant was given the
RIF notice because she was medically disqualified for the File Clerk
position, and there were no other vacant positions available for which
complainant qualified. And finally, complainant was denied advanced
sick leave because her personal physician indicated that her return
to work was undetermined, and therefore it was unknown whether or not
complainant could pay back the advance sick leave.
Complainant must now establish by a preponderance of the evidence that the
agency's legitimate, nondiscriminatory reasons are pretext for harassment.
The record reveals that most of the alleged acts of harassment that
complainant alleges deal directly with the circumstances surrounding the
RIF, and had nothing to do with complainant's age, disability, or prior
protected EEO activity. Complainant failed to offer evidence that would
establish that discriminatory animus more likely than not influenced any
of the agency's actions. Therefore, we find that complainant failed to
establish that the agency discriminated against her, as alleged.
Constructive Discharge
Complainant asserts that she was constructively discharged when
she retired early. Constructive discharge occurs when an employer
deliberately renders an employee's working conditions so intolerable
that the individual is forced to retire from her position. Constructive
discharge only occurs when the agency's actions were taken with
the intention of forcing the employee to retire. The Commission has
established three elements which complainant must prove to substantiate a
claim of constructive discharge: 1) a reasonable person in complainant's
position would have found the working conditions intolerable; 2) the
conduct causing the intolerable working conditions is an EEO violation;
and 3) complainant's resignation was caused by the intolerable working
conditions. See Taylor v. Army and Air Force Exchange Service, EEOC
Request No. 05900630 (July 20, 1990); see also Perricone v. United States
Postal Service, EEOC Request No. 05900135 (June 11, 1990). As discussed
above, the agency's conduct did not amount to discrimination, and hence
was not an EEO violation. Therefore, complainant has failed to establish
that her alleged forced retirement was a constructive discharge.
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 (M1208)
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 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 (S0408)
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 (Z1008)
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
March 10, 2009
Date
1 See Westbrook v. Department of Veterans Affairs, EEOC Petition
No. 03A40143 (October 28, 2004).
2 Throughout her appeal, complainant asserts that the AJ unfairly placed
the burden on her to establish that discrimination existed. We note that
the burden is at all times on complainant to establish by a preponderance
of the evidence that discrimination existed.
3 The physician based this determination on the physical limitation
paperwork that was previously submitted by complainant's doctor, because
complainant refused to submit additional paperwork. While complainant
does not contest the limitations in her prior paperwork, she takes issue
with the fact that she was asked to provide additional documentation.
We note that an employer may require an employee to provide documentation
that is sufficient to substantiate that she has a disability within the
meaning of the Rehabilitation Act and needs the reasonable accommodation
requested, but cannot ask for unrelated documentation. Documentation
is insufficient if it does not specify the existence of a disability
and explain the need for reasonable accommodation. An employer that
requests additional information based on a good faith belief that the
documentation the employee submitted is insufficient is not liable
for discrimination. EEOC Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans
with Disabilities Act (ADA), response to question 11, (July 27, 2000).
Complainant does not dispute the accuracy of her previous medical
documentation.
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0120070774
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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