0120083176
07-19-2012
Deola Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Deola Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120083176
Hearing No. 430-2007-00367X
Agency No. 2004-0590-2007-1005-49
DECISION
Complainant timely filed an appeal from the Agency's June 9, 2008, 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 substantial evidence supports the AJ's conclusion that Complainant failed to establish that the Agency unduly delayed in providing her with a reasonable accommodation for her disability as alleged.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Staff Nurse at the Agency's Veterans Affairs Medical Center (VAMC) in Hampton, Virginia. Report of Investigation (ROI), at 2. Complainant's first-line supervisor during the relevant time period was the Nurse Manager, Spinal Cord Injury (S1), her second-line supervisor was the Associate Chief Nurse (S2), and her third-line supervisor was the Associate Director of Patient Care Services (S3). Id.
The record reflects that Complainant suffers from Post-Traumatic Stress Disorder (PTSD) and major depression. Id. Complainant began to experience symptoms of PTSD after two patients allegedly were murdered in separate incidents at the VAMC in 1985 and 1986. Id. at 2-3. Complainant also served in the United States Army Reserve from March 21, 1986 until she retired as a Lieutenant Colonel in November 30, 2006.
On January 10, 2005, Complainant submitted a note from her physician to S3 stating:
[Complainant] is under medical supervision. She suffers from PTSD which is connected to hospital emergency rooms. Please assign her to another position outside of the ER in an attempt to prevent a further exacerbation of her symptoms.
ROI, at Ex. C-4.
Complainant did not work in the hospital emergency room at that time. Nevertheless, S3 transferred Complainant from the medical unit where she was working to Spinal Cord Injury because S3 felt Spinal Cord Injury involved "less activity, less stress." Hr'g Tr., at 107-108. S1 became Complainant's first line supervisor after Complainant was transferred. Id. at 125. S1 testified at the hearing that she was not informed of Complainant's medical condition(s) at that time. Id. at 126.
On February 24, 2005, Complainant, who was assigned to the 7:30 a.m. to 4:00 p.m. shift, sent an e-mail to S1 asking to be assigned to the 12:00 a.m. to 8:00 a.m. tour of duty (midnight shift). ROI, Ex. C-3, at 1. On March 10, 2005, Complainant did not attend interdisciplinary meetings that she was required to attend because she had a difficult time talking in large groups. ROI, at 7. S1 and S2 met with Complainant the same day to discuss Complainant's request for a shift change. Id. Complainant informed S1 and S2 at that time that she wanted to change her tour of duty because the midnight shift was less stressful. Id. Complainant stated that she informed S1 and S2 about her condition and that she needed space. Id. S1 informed Complainant that she would not be reassigned, but could work relief shifts as a substitute nurse for the midnight tour of duty until there was a full-time opening. Hr'g Tr., at 130. All four registered nurse positions on the midnight shift were reportedly filled at that time. Id. at 154.
On March 14, 2005, Complainant sent an e-mail to S1 asking if her request to work the midnight shift would be honored. ROI, Ex. C-3, at 2. On March 19, 2005, Complainant sent S1 an e-mail, with the subject line "Request for Accommodations," stating:
Since you have not responded to my request of 2/24/05 to be assigned to work indefinite [12:00 a.m. - 8 a.m.] tour, I can only assume that my request will not be honored. Therefore, I am requesting reasonable accommodations when assigned to work [7:30 a.m. - 4:00 p.m.]. As discussed with you on March 10, 2005 in the presence of [S2], attending interdisciplinary meetings makes me very nervous due to the large number of people present. I also explained to you at a later time that I need space because of my medical condition, and that I left the community health nurse coordinator position because of the anxiety created by attending the interdisciplinary meetings. I am requesting reasonable accommodations by asking not to be assigned as charge nurse on days interdisciplinary meetings are held . . . .
ROI, Ex. C-3, at 3.
As relief for another nurse, Complainant was temporarily placed on the midnight shift from July 2005 through late November 2005. Hr'g Tr., at 155. Complainant returned to the 7:30 a.m. - 4:00 p.m. shift after the relief period ended. However, Complainant was allowed to substitute into the midnight shift on other occasions in 2005 when another nurse either went on sick leave or vacation. Id. at 156. Complainant also substituted on the midnight shift in February 2006 and on other occasions. Id. at 161.
On March 17, 2006, while working the 7:30 a.m. - 4:00 p.m. shift, Complainant had a panic attack. Hr'g Tr., at 133. Complainant, among other things, experienced high blood-pressure and chest pains. Complainant went to Employee Health and was granted sick leave for the remainder of the day. Id. On March 20, 2006, Complainant sent S1 an e-mail, with the subject line "Tour of Duty," stating:
I am requesting to be scheduled to work the [12:00 a.m. - 8:00 a.m.] tour. Working [7:30 a.m. - 4:00 p.m.] is proving to be too stressful for me. I had a complete melt-down March 17. I will appreciate anything you can do to accommodate this request.
ROI, Ex. C-3, at 4.
On April 7, 2006, Complainant was involved in a confrontation with another employee after Complainant was observed speaking with a patient in an agitated manner. ROI, Ex. C-7, at 1-3. Complainant allegedly "uttered a four-letter word" directed at the employee. Id. On May 22, 2006, Complainant was provided with a notice of proposed 14-day suspension for conduct unbecoming patient-care personnel. Id. at 8. The notice referenced the April 7 incident and cited the fact that Complainant had previously been issued a reprimand on December 29, 2003. Id.
In July 2006, Complainant voluntarily retired from her commission as an officer in the United States Army due to stress allegedly caused by her position with the Agency. Hr'g Tr., at 256-257. On August 3, 2006, Complainant met with S1 and S3 to discuss the proposed suspension. ROI, Ex. C-7, at 12. Complainant indicated to her supervisors that she was experiencing a high level of anxiety and that the incident on April 7 occurred because of her medical condition. Id.
On August 23, 2006, Complainant submitted a note from her physician indicating that she was under medical supervision, unstable, and unable to return to work until she was medically cleared on September 11, 2006. ROI, Ex. C-6, at 6. Thereafter, Complainant submitted a new note from her physician on September 12, 2006, indicating that she remained under medical supervision and that she was unable to return to work until September 25, 2006. Id. at 7. On September 13, 2006, S3 sent Complainant a memorandum that noted:
Please be advised that your leave request is approved, contingent on you providing to your immediate supervisor, not later than five (5) days after you return to work, medical documentation covering your absence from September 12, 2006, through September 29, 2006.
Id. at 8.
S3's memorandum further noted that a decision on Complainant's proposed suspension would be postponed to allow Complainant to submit information regarding her medical condition for management to consider, and the memorandum advised Complainant on how to submit a request for a reasonable accommodation should she need an accommodation upon her return to work. Id. at 9-10.
In her September 20, 2006, response to S3's memorandum, Complainant accused S3 of harassment, indicated that sufficient medical documentation had already been provided, and asked why she had not been given reasonable accommodation request forms in March 2006. ROI, Ex. C-7, at 14-15. On November 3, 2006, S3 issued Complainant a notice sustaining the suspension. Id. at 16.
On November 10, 2006, Complainant was given a permanent midnight shift assignment after an opening became available. Hr'g Tr., at 161-163. Complainant was reportedly given the permanent midnight shift assignment because the charge nurse on that shift obtained a nursing coordinator position the week of November 5, 2006. Id.
On November 20, 2006, Complainant contacted an EEO Counselor. On January 11, 2007, Complainant filed an EEO complaint alleging that she was discriminated against on the bases of disability and in reprisal for prior protected EEO activity under the Rehabilitation Act when:
(1) she was issued a letter of suspension for November 21, 2006, through December 4, 2006;
(2) the Agency delayed her request to change to the midnight shift as a reasonable accommodation for her disability; and
(3) on September 13, 2006, she received a letter from the Agency requesting medical documentation for her leave request.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and a notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 4, 2008, the AJ granted the Agency's February 14, 2008, motion for a decision without a hearing with respect to claim (1). The AJ held a hearing on April 14, 2008, regarding claim (2). The AJ subsequently issued a decision on May 29, 2008, finding no discrimination.
The AJ initially found that Complainant was a "qualified individual with a disability." The AJ's decision also addressed claim (1), finding that Complainant was not subjected to discrimination when she was suspended for misconduct. The AJ's decision noted that "the Commission's Enforcement Guidance and the case law are clear that Complainant's disability does not excuse her conduct." With respect to claim (2), the AJ found that Complainant failed to establish that the Agency did not accommodate her disability. The AJ noted that the Agency was not required to create a new midnight shift position for Complainant. The AJ also noted that there was no evidence to contradict S1's testimony that Complainant was assigned to the midnight shift when a position finally became available. The AJ further noted that Complainant "was utterly uncooperative" when she was asked for medical documentation in support of her request for a shift change. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that she was subjected to discrimination as alleged.1
CONTENTIONS ON APPEAL
On Appeal, Complainant, through her attorney, contends that Complainant first requested accommodation on February 24, 2005, which the Agency did not approve until November 2006, some 21 months later. Complainant therefore contends that the Agency unnecessarily delayed in approving her request for accommodation to work on the midnight shift. Complainant contends that working the day shift at the Agency is more stressful than the midnight shift due to a higher patient volume. Complainant contends that she did not suggest that the Agency create a new midnight shift position for her, but simply requested to be switched with another employee on the midnight shift. Complainant contends that the Agency did not show that it was unable to switch her with another employee from the midnight shift.
In response, the Agency asserts that Complainant has failed to show that the AJ's decision is not supported by substantial evidence. The Agency asserts that Complainant was allowed to switch to the night shift when an opening became available. The Agency asserts that it did not have the necessary medical information in order to accommodate Complainant. The Agency further asserts that Complainant was uncooperative in providing medical documentation to the Agency. The Agency also asserts that Complainant made no mention of her medical condition when requesting accommodation. The Agency therefore requests that we affirm its final order adopting the AJ's decision.
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. See 29 C.F.R. � 1614.405(a). 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 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Under the Commission's regulations2, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We note that the Agency did not contest the AJ's decision finding that Complainant is a qualified individual with a disability. Therefore, for purposes of analysis, the Commission shall accept that Complainant is a qualified individual with a disability. 29 C.F.R. � 1630.2(g)(1).
An employer should respond expeditiously to a request for reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002, at Q. 10 (Oct. 17, 2002). If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation of the Rehabilitation Act. Id. In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Id. at n. 38.
The record reflects that shortly after Complainant requested a shift change on February 24, 2005, S1 informed Complainant on March 10, 2005, that she could not be reassigned to the midnight shift because there was not a permanent full-time opening. Hr'g Tr., at 129-130. However, S1 did inform Complainant that she could work midnight shifts as a substitute nurse until there was a permanent full-time opening. Id. The record reflects that Complainant worked the midnight shift on an intermittent basis as a substitute nurse until a permanent position opened up. Id. at 155, 169. On appeal, Complainant does not dispute the fact that there were no permanent midnight positions available at the time, but contends that the Agency did not show that it was unable to switch Complainant with another employee from the midnight shift. However, we note that the Rehabilitation Act does not require an agency to "bump" another employee from a job in order to create a new position. See Rivera v. U.S. Postal Serv., EEOC Appeal No. 0120083219 (Sep. 23, 2011) (citing Schuetter v. Dep't of Defense, EEOC Petition No. 03970140 (Jan. 15 1999)). Accordingly, with respect to claim 2, we find that the AJ's finding that Complainant failed to establish that the Agency unduly delayed in providing her with a reasonable accommodation is supported by substantial evidence in the record. 3
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 adopting the AJ's 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
July 19, 2012
Date
1 The AJ's decision did not address claim 3.
2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in [insert year], the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability."
3 We decline to address claims 1 and 3 because Complainant did not specifically raise them on appeal. Complainant's appeal focused exclusively on the Agency's delay of her reasonable accommodation request with respect to claim 2. The Commission exercises its discretion to review only the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � IV. A. (Nov. 9, 1999).
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0120083176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083176