Jacquelyn S. Smith, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 17, 2002
01A13431 (E.E.O.C. Sep. 17, 2002)

01A13431

09-17-2002

Jacquelyn S. Smith, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Jacquelyn S. Smith v. Department of Veterans Affairs

01A13431

September 17, 2002

.

Jacquelyn S. Smith,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A13431

Agency No. 99-1451

Hearing No. 130-A1-8010X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's Final Order in the above-entitled matter.

Complainant alleged that the agency discriminated against her when it

failed to reasonably accommodate her disability (stroke) in violation

of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.<1> For the following reasons we

affirm the agency's Final Order.<2>

Complainant, then a GS-4 Medical Clerk at the agency's Central Alabama

Veterans Health Care System in Montgomery, Alabama, had two strokes

during 1990 and 1991. Secondary thereto, complainant experienced several

conditions including memory loss, frustration, dizziness, faintness,

depression, and high blood pressure. Stress exacerbated these conditions.

At the suggestion of her physicians, the agency reassigned complainant

in order to avoid work-related stress. In 1991, the agency reassigned

complainant to a Ward Clerk position and in 1995, the agency reassigned

complainant to a Ward Clerk/Unit Coordinator position (in 1998 the agency

upgraded all Ward Clerks to GS-5 Patient Services Assistants).

Sometime in early 1999, the position of Patient Services Assistant became

too stressful for complainant and she felt that the stress threatened

her own life and the lives of the patients at the facility. As a result,

the agency offered complainant a GS-5 secretary position. Additionally,

the agency offered complainant training so that she could refresh her

typing skills. Complainant declined the secretary position because she

had not typed in a long time and did not feel comfortable doing it.

In May 2000, the agency created a position with unique duties, GS-5

Administrative Support Clerk. Complainant argues that the agency should

have provided her with these duties much sooner. The Administrative Judge

concluded, following a hearing, that complainant failed to demonstrate

that she was a qualified individual with a disability, in that, she

failed to demonstrate that she could perform the essential functions of

her position with or without a reasonable accommodation. Agreeing with

the Administrative Judge's conclusion, the agency issued a Final Order

finding that complainant was not discriminated against in violation of

the Rehabilitation Act. This appeal followed. Complainant submits no

argument on appeal.

The Rehabilitation Act requires federal agencies to make reasonable

accommodations 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. �

1614.203(c)(1). We assume, without finding, that complainant is an

individual with a disability within the meaning of the Rehabilitation Act.

However, to be a qualified individual with a disability, one must be

able to perform the essential functions of the position she holds or

desires with or without an accommodation. See 29 C.F.R. � 1630.2(m).

Reasonable accommodation may include making facilities accessible,

restructuring jobs, modifying work schedules, reassignment to a vacant

position and other similar actions. See 29 C.F.R. �� 1614.203(c)(2);

1614.203(g).

We concur with the Administrative Judge's conclusion that complainant

failed to demonstrate that she was a qualified individual with a

disability within the meaning of the Rehabilitation Act. The record shows

that complainant had trouble concentrating and remembering information.

No form of accommodation has been identified which would allow

complainant to perform the essential functions of her Patient Services

Assistant position. In fact, complainant concedes that she could not

perform the essential functions of her own position. Complainant also

concedes that she declined the agency's offer for a secretarial position,

a position that was within her medical restrictions. Complainant failed

to identify any open positions, the essential functions of which, she

could perform as possible reassignments.<3> We note that the agency is

not obligated to create a position in order to accommodate complainant.

See Kubik v. Department of Transportation, EEOC Appeal No. 01973801 (July

9, 2001). See EEOC Enforcement Guidance on Reasonable Accommodation and

Undue Hardship Under the Americans With Disabilities Act (Enforcement

Guidance), No. 915.002, p.40 (March 1, 1999).

Therefore, after a review of the record in its entirety, it is the

decision of the Equal Employment Opportunity Commission to affirm the

agency's Final Order because the Administrative Judge's ultimate finding,

following a hearing, that complainant was not denied a reasonable

accommodation is supported by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 17, 2002

__________________

Date

1 The Rehabilitation Act was amended in 1992

to apply the standards in the Americans with Disabilities Act (ADA)

to complaints of discrimination by federal employees or applicants

for employment.

2 In Jacquelyn S. Smith v. Department of Veterans Affairs, EEOC Appeal

No. 01A00309 (April 5, 2000) the Commission reversed the agency's

procedural dismissal of complainant's denial of reasonable accommodation

complaint.

3 The agency is advised that 29 C.F.R. � 1614.203(g), which governed

and limited the obligation of reassignment in the Federal sector, has

been superceded and no longer applies. 67 Fed. Reg. 35732 (5/21/01),

codified as 29 C.F.R. � 203(b). The Americans with Disabilities Act (ADA)

standards apply to all conduct on or after June 20, 2002, and emphasize,

among other things, a broader search for a vacancy. The ADA regulations

regarding reassignment can be found at 29 C.F.R. �� 1630.2(o) and 1630.9.

Additional information can be found in the Appendix to the ADA regulations

and in the EEOC's Enforcement Guidance on Reasonable Accommodation and

Undue Hardship under the Americans with Disabilities Act (March 1, 1999)

at Questions 25-30. These documents are available on the EEOC's website

at www.eeoc.gov.