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.