01975033
08-27-1999
Debra D. Moreno, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Debra D. Moreno, )
Appellant, )
) Appeal No. 01975033
v. ) Agency No. 95-0894
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity and discrimination based on
national origin (Hispanic)<1> and sex (female), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e,
et seq. Appellant alleges she was subjected to: (1) discrimination
when her request for light duty to accommodate pregnancy-related medical
restrictions was denied, and (2) retaliation when, on September 7, 1994,
she was issued a written counseling for leaving her work area without
supervisory permission. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED AS CLARIFIED.
The record reveals that during the relevant time, appellant was employed
as a Nursing Assistant at the agency's Medical Center in Fort Lyon,
Colorado. When she learned that she was pregnant in June, 1994, her
personal physician submitted documentation to the agency stating that
appellant should not lift in excess of twenty-five pounds, and should
not work longer than eight-hour shifts. The Employee Health Physician
concurred, but appellant contends her restrictions were not accommodated.
On September 7, 1994, one day after appellant had gone to the personnel
office to inquire about EEO procedures for raising a discrimination
complaint arising out of her light duty situation, appellant received a
written counseling for leaving her assigned work area for hours without
permission. Believing she was a victim of retaliation and discrimination
on the above-referenced bases, appellant sought EEO counseling and,
subsequently, filed a complaint on October 19, 1994.
At the conclusion of the investigation, the EEO Investigator issued
a report and recommendation concluding that appellant had failed to
establish a prima facie case of discrimination based on sex because she
herself identified a similarly-situated female co-worker who received
more favorable treatment while pregnant. However, the EEO Investigator
concluded that appellant did establish prima facie cases of both
retaliation and national origin discrimination.
Nonetheless, the investigator reasoned that because appellant's
supervisors and co-workers testified that she had in fact been
accommodated consistent with all of her medical restrictions, the agency
had satisfied its burden to articulate a legitimate non-discriminatory
reason for its actions relative to her light duty requests. Offering an
explanation for the contradictory testimony between appellant and the
agency's witnesses regarding whether or not appellant was afforded light
duty, the investigator noted that "[i]t is apparent that the complainant
considered 'light duty' as non-patient duties while management followed
physician recommendations and provided light 'patient care' duties during
the period in question." Report of Investigation (ROI) at 5.
The investigator also found that the agency had met its burden to
articulate a legitimate non-retaliatory reason for appellant's written
counseling, since her supervisor testified that this was not her first
offense and that prior verbal warnings had been given. The investigator
then concluded that appellant had failed to show that the agency's stated
reasons for its actions on her light duty requests or issuance of written
counseling were a pretext for retaliation.
Appellant advised the agency that she did not agree with the EEO
Investigator's findings, and initially requested a hearing before an
Administrative Judge of the EEOC. However, appellant subsequently
rescinded her request for a hearing and requested that the matter be
remanded to the agency for issuance of a FAD.
The FAD stated that the agency agreed with the EEO Investigator's
findings and analysis, and adopted them as its own, with several
clarifications. Specifically, the FAD concluded that: (1) Title
VII's sex discrimination prohibition, as amended by the Pregnancy
Discrimination Act (PDA) of 1978, requires an employer to treat an
employee temporarily disabled by pregnancy in the same manner as it
treats employees temporarily disabled by other medical conditions,
but that had failed to demonstrate that there were temporarily disabled
employees with similar restrictions who were granted particular light
duty assignments or other accommodations which appellant was denied;
(2) the evidence demonstrated that the agency did in fact accommodate
appellant's pregnancy-related general work restrictions by modifying her
duties so that, inter alia, she would not have to lift more than "24/25
pounds," she would not have to work longer than eight-hour shifts, and
she would have frequent rest breaks; (3) appellant was not diagnosed as
having a high-risk pregnancy, and she was not medically precluded from
direct patient care or working with patients with infectious diseases
during the time period she was assigned to the patient care unit;
(4) appellant's co-workers and supervisors credibly attested that
her limitations were honored, and that she was able to choose "those
patients who, by and large, did not require lifting," FAD at 2; and (5)
appellant failed to demonstrate that the written counseling she received
was retaliatory, since she admitted leaving her unit for more than an hour
without the charge nurse's permission, her supervisors testified that it
was not her first offense and she had previously been verbally counseled
for the same infraction, her co-workers testified that the notification
policy was clear and had been repeatedly stated to them by management,
and there was no evidence that a similarly-situated employee without a
record of EEO activity had committed a similar infraction but received
more lenient treatment.<2>
Appellant has not submitted any contentions on appeal. The agency stands
on the FAD and requests that it be affirmed.
Light Duty
The record reveals that in early June, 1994, appellant's personal
physician and the agency physician concurred that appellant should
be restricted from lifting more than 25 pounds. ROI at Exhibits C-3
and C-4. By letter dated June 23, 1994, appellant's personal physician
requested that she: (1) be limited to lifting no more than 24 pounds;
(2) not work longer than eight-hour shifts; (3) be given frequent breaks
to be off her feet as well as a ten-minute period for rest every two to
three hours; (4) avoid exposure to chemotherapy medications; (5) avoid
infectious exposures; (6) not pick up patients or "dead lift[]" patients
(to avoid back injury); (7) avoid any significant inhalation exposure.
The letter did not state that appellant's position should be changed,
and with respect to the last restriction, the physician added "but I
doubt she would have any kind of risk of being exposed to this at her
present job." ROI at Exhibit C-7.
However, by letter dated July 18, 1994, appellant's physician reiterated
the above duty limitations, and added that appellant "should also be moved
from patient care for the remainder of the pregnancy due to infectious
exposures and combative patients." Id. at Exhibit C-8. The record also
contains an Employee Health Physician's Treatment Note dated July 22,
1994, stating that appellant should be: (1) given frequent breaks;
(2) limited to eight-hour shifts; (3) restricted to maximum lifting
of 24-pounds; and (4) "[r]emoved from patient care for the remainder
of pregnancy." Id. at Exhibit C-9.
Appellant concedes from approximately June 11 until August 4, 1994,
management accommodated her lifting restrictions. See Appellant's
Affidavit at 2-6. When appellant was then transferred from 5C South to
unit 4B, management assured her that she could refrain from any lifting.
Id. at 4-5 (Q-17, Q-18, and Q-19). Appellant contends, however,
that thereafter she was reassigned to patient care duties and told she
"had to use [her] own discretion" regarding her medical restrictions.
Id. at 6 (Q-28). By memorandum dated August 4, 1994, the Chief, Nursing
Service, advised appellant that she had directed the agency's Chief,
Ambulatory Care Service, to speak to appellant's personal physician
to clarify the nature and scope of appellant's restrictions, and that
she had determined based on the information obtained that appellant's
medical restrictions could be accommodated within her current patient
care position. See ROI at Exhibit C-12.
Although appellant was later transferred out of patient care entirely
to a clerical position which was created to accommodate her medical
restrictions, she alleges that the failure to grant this transfer between
August and October, 1994, was discriminatory.<3> Appellant asserts that
she should have been placed in the outpatient unit or a clerical position,
so that she would not risk jeopardizing patient safety if her medical
restrictions required that she refrain from necessary care which no one
else was available to provide to a patient. Appellant's Affidavit at 6
(Q-28 and Q-29).<4> By contrast, management contends that in order to
treat appellant in the same manner it treated other employees requesting
light duty, it was not required to assign appellant in a particular
position identified by her physician, but rather only to provide that
in whatever position she was placed, she was afforded light duty in
accordance with her restrictions. Affidavit of Chief, Nursing Service,
at 1-2 (Q-6).
After a careful review of the record in light of these contentions, based
on McDonnell Douglas v. Green, 411 U.S. 792 (1973), Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979), Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981), the Commission finds that the agency
erred in concluding that appellant established a prima facie case of
discrimination based on national origin or sex, because the evidence does
not support appellant's contention that she was ever denied light duty.
The record confirms that management advised appellant by memorandum
dated August 4, 1994 that she would be assigned to the patient care
unit because the agency physician had obtained clarification from her
personal physician that a non-patient care position was not in fact
required at that time. See ROI at C-12. By the same memorandum,
management confirmed to appellant that she should adhere to her
medical restrictions while working in the patient care unit. Id.
Appellant conceded in her investigative affidavit that she was also told
by her supervisors to abide by her light duty restrictions by exercising
discretion to refrain from proscribed tasks and to otherwise comply with
her physician's requirements. See Appellant's Affidavit at 6 (Q-28).
Moreover, even assuming alternatively, as appellant contends, that
management's decision to keep appellant assigned to the patient care unit
constituted the denial of light duty, appellant has nonetheless failed
to adduce any evidence to support an inference of sex discrimination
in order to establish a prima facie case. Absent other evidence to
support an inference of discrimination, a complainant cannot establish
a prima facie case of sex discrimination if she fails to demonstrate
that a similarly-situated employee outside of her protected group was
given favorable treatment. Button v. United States Air Force, EEOC
Appeal No. 01954541 (June 12, 1997). In the instant case, appellant
herself asserts that another female employee, R.D., was afforded
favorable treatment with respect to light duty during her pregnancy.
Since R.D. and appellant are in the same protected group, i.e. both
female, appellant has in fact undermined her contention that her sex was
a factor in management's handling of appellant's light duty restrictions,
and cannot establish a prima facie case of sex discrimination.
Finally, even assuming arguendo that appellant has established a
prima facie case of discrimination based on either sex or national
origin, management has met its burden to articulate a legitimate,
non-discriminatory reason for its actions by asserting that it denied
appellant a reassignment to a non-patient care position between August and
October, 1994, because it concluded all of her light duty restrictions
could be accommodated in the patient care unit. Appellant has failed
to establish by preponderant evidence that this proffered reason for
management's action is a pretext for discrimination based on sex or
national origin. As noted above, appellant herself claims that another
female was treated more favorably, thus undermining appellant's contention
that her sex was the motive for keeping her assigned to the patient care
unit. Further, the Chief, Nursing Service, attested in her affidavit,
and appellant has not rebutted, that there were two Hispanic employees on
the clerical staff, thus, absent other evidence, undermining appellant's
contention that she was denied assignment to the clerical staff because
of her national origin. Absent additional evidence from appellant to
support her discrimination claim, such undisputed testimony tends to
disprove appellant's allegation that the Chief, Nursing Service, opposed
to placing appellant in clerical position because of appellant's national
origin. Thus, even accepting as true appellant's allegations that she was
effectively denied light duty, she has not produced evidence sufficient
to create an inference that management acted for discriminatory reasons.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Discipline
Based on the evidence in the record, we conclude that while appellant
has established a prima facie case of retaliatory discipline, see n.2,
supra, she has not demonstrated by a preponderance of the evidence that
the agency's proffered reason for the written counseling she received
was pretextual. Appellant concedes that the relevant facts regarding her
offense are correctly stated in the written counseling she received.
Appellant's Affidavit at 12-13 (Q-50 and Q-51). Notwithstanding
appellant's contention that other employees without prior EEO activity
received less severe discipline for the same infraction, she has not
identified any such comparators, or by any other means rebutted the
personnel officer's affidavit that management followed uniformly-applied
agency procedures in issuing appellant a written warning for leaving
her work area for hours without permission. See ROI at Exhibit B-9(b);
cf. Kennedy v. United States Postal Service, EEOC Request No. 05970745
(April 2, 1999). Nor has appellant provided any other evidence sufficient
to prove by a preponderance of the evidence that her written counseling
was motivated by retaliatory intent.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 (S0993)
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 the 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 the 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 the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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:
August 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Although appellant
expressly alleged discrimination on the basis
of "national origin" in her complaint, the
EEO investigator's report and the FAD refer,
incorrectly, to the claim as one of "race"
discrimination. We will use appellant's
designation herein.
2To the extent the FAD implied that the law requires appellant to identify
similarly situated persons without prior EEO activity who were not subject
to adverse treatment, we note this is incorrect. A prima facie case
of retaliation is established by showing: (1) the petitioner engaged in
protected activity; (2) the employer was aware of the protected activity;
(3) petitioner was subsequently subjected to adverse treatment; and
(4) the adverse action followed the protected activity within such a
period of time and manner that retaliatory motivation may be inferred.
Pickering v. Department of Veterans Affairs, EEOC Petition No. 03980044
(October 8, 1998). See also Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976).
3In October, appellant's physician wrote a letter stating that appellant's
medical condition required that she be restricted to clerical work so
that she would be off her feet. Id. at Q-33.
4Appellant testified that once she returned to patient care in August,
she was not able to refrain from lifting more than 25 pounds. Id. at 7
(Q-30) ("You have to [life more than 25 pounds.] You have to roll and turn
[patients] � You have to do suppository, change diapers. [One] person
cannot roll a 150 pound person by themselves"). Appellant also testified
that beginning in August, her legs began to swell and cause her pain,
but she conceded in her affidavit that this too was not a function of
management depriving her of medically-ordered breaks, but rather because
she felt there was no place to elevate her feet in the patient care unit.
Appellant's Affidavit at 7 (Q-31).