01971345
03-05-1999
Helen A. Vega-Martinez, Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.
Helen A. Vega-Martinez v. Department of Veteran's Affairs
01971345
March 5, 1999
Helen A. Vega-Martinez, )
Appellant, )
) Appeal No. 01971345
v. ) Agency No. 94-1880
) EEOC No. 150-95-8187X
Togo D. West, Jr., )
Secretary, )
Department of Veteran's Affairs, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq., and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission accepts this appeal in accordance with EEOC Order
No. 960.001.
Appellant filed a formal complaint of discrimination in which she claimed
discrimination and harassment on the bases of national origin (Puerto
Rican) and physical disability (luboscral sprain) when management refused
her light duty assignments since 1992. The agency accepted the complaint
and conducted an investigation. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission administrative judge (AJ). A hearing was conducted on April
9, 1996.
On September 19, 1996, the AJ issued a recommended decision (RD) finding
no discrimination. The AJ concluded that there was no dispute that
appellant had an impairment that substantially limited her major life
activities and that she had a record of such impairment. Furthermore,
the AJ found that based on appellant's testimony, appellant had a
disability. However, upon review of appellant's medical restrictions,
which as of November 29, 1993, restricted her to, "strict light duty,
totally sedentary, no direct patient care, no stair climbing, no bending
or stooping, no squatting or kneeling, no lifting over 10 lbs, limited
standing and walking", the AJ found that appellant appeared not to be
a "qualified individual with a disability."
Assuming she was, the AJ found that the agency had satisfied its burden
of providing appellant with a reasonable accommodation. The AJ found
that soon after appellant's work-related injury in July 1992, appellant
brought in a medical note from her physician which restricted her to,
"no bending, no stooping, no squatting, no heavy lifting." The AJ found
that appellant and her supervisor met twice to find out what duties she
could do. Appellant told her supervisor that she would take patient's
vitals, pass out medication and feed patients. Appellant's supervisor
agreed and told appellant to make sure she worked within her restrictions.
Appellant testified, however, that the agency kept assigning her work
assignments outside of her work restrictions, and maintained that she
could not provide all the duties necessary for total patient care, such
as changing diapers, providing bed baths, putting patients in wheel chairs
and dressing them. The AJ found that the failure to comply with the work
restrictions was a direct result of appellant's own actions by working
more than was required of her. Indeed, appellant admitted that she was
not ordered or instructed to work outside of her work restrictions and
also admitted that her supervisor told her to be careful.
Appellant testified that she believed she had an obligation to
her patients to attend to their needs, such as bathing and dressing
patients, even if it violated her restrictions. The AJ found that the
fact that appellant worked beyond her restrictions on her own initiative
was supported by witnesses. The AJ also found that because appellant
violated her restrictions, she reinjured her back in June 1996. Later,
appellant's doctor recommended that appellant be transferred to outpatient
care. Despite appellant's allegation that the agency ignored this
request, the AJ found that the record did not support such an assertion.
For instance, the Associate Chief of Nursing, who was appellant's second
line supervisor, testified that she discussed appellant's request for
a transfer. However, the Associate Chief testified that outpatient care
was more demanding and that since the facility had many employees on
light duty at the time, they tried to keep employees in their assigned
areas, working within their restrictions. Instead, the Associate Chief
asked appellant if she could pass out medication and feed patients, to
which appellant replied in the affirmative. The AJ found that appellant
also was seen answering the phone with the secretary. In sum, the AJ
found that the agency met its obligation of providing appellant with a
reasonable accommodation.
With respect to her disparate treatment claim, the AJ found that appellant
failed to establish a prima facie case in that she failed to provide any
evidence which established that she was treated differently than similarly
situated individuals outside of her protected class. Specifically,
those comparators cited by appellant were on light duty and continued
to work in their assigned areas, and were assigned patient care. The AJ
found that the duty of ensuring that one worked within their restrictions
was left primarily to the employee.
With respect to appellant's claim of discrimination due to her national
origin, the AJ found that appellant also failed to establish a prima
facie case in that she failed to identify similarly situated individuals
who were treated more favorably than she was with respect to light
duty assignments. Although appellant alleged she was not permitted
to speak Spanish with her co-worker's, the supervisor testified that
she received complaints from some staff members who said that patients
complained that they did not know what was going on while staff members
were speaking Spanish around them. Furthermore, she stated that some
of the geriatric patients got upset and confused as they thought they
were being talked about. Thus, the supervisor testified she asked
appellant and some of the other employees to not speak Spanish in front
of patients, but that she was free to speak Spanish in non-patient areas.
The AJ found that appellant's allegations regarding her supervisor's
preferential treatment for non-Hispanics was not supported by the record.
The AJ also found that appellant's testimony at times was inconsistent
and contradictory, and for that reason she was not credible. However, the
supervisor's and Associate Chief of Nursing's testimony was corroborated,
consistent, and therefore credible.
Lastly, the AJ found that appellant's claim of harassment failed in that
she did not present evidence of an environment polluted by derogatory
remarks, or any other harassment which was severe or pervasive enough
to create an abusive work environment. In sum, the AJ found that
appellant failed to prove by a preponderance of the evidence, that she
was discriminated against on the bases of national origin or physical
disability, as alleged.
On November 15, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
We note appellant has not filed any contentions on appeal, and we discern
no basis in which to disturb the AJ's finding of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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 (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 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. 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:
__March 5, 1999____ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations