0120054148
01-10-2007
Judith A. Neff, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Judith A. Neff,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200541481
Hearing No. 100-A4-0717X
Agency No. 2004-0688-2003102
DECISION
On May 25, 2005, complainant filed an appeal from the agency's May 10,
2005 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed
timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
Complainant was previously employed as a Medical Clerk (Typing), GS-5,
at the VA Medical Center in Washington, DC. On May 1, 2003, complainant
contacted an EEO Counselor and filed a formal EEO complaint on May
29, 2003, alleging that she was discriminated against in that she was
harassed, coerced and forced to resign on the bases of her disability
(depression/anxiety, irritable bowel syndrome) and age (D.O.B. 07/26/46)
when:
1. She received a letter denying her request for accommodation on March 3,
2003;
2. She was given a letter of counseling by her supervisor on March 6,
2003;2
3. She was given paperwork to initiate application for disability
retirement by her supervisor on April 11, 2003;
4. She received a letter of complaint on May 8, 2003, from a patient's
relative about an incident that occurred on March 5, 2003;
5. She was reassigned to the Home Based Primary Care Office on May 14,
2003, pending approval for disability retirement; and
6. She received a letter on November 21, 2003 from OPM dated November 17,
2003, which authorized the approval for disability retirement.
At the conclusion of the investigation,3 complainant was provided with
a copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
January 27, 2005 motion for a decision without a hearing and issued a
decision without a hearing on April 21, 2005. 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.
In his decision, the AJ dismissed issues (4) and (6), for failure to
state a claim. The AJ then found that complainant did not show that
she is disabled under the Rehabilitation Act. In so finding, he noted
that complainant specifically stated in her deposition that none of her
major life activities were affected by her anxiety, stress or depression.
The AJ further found that complainant was not a "qualified individual with
a disability" because she could not perform the essential functions of her
job due to the stressful setting. The AJ found that the agency was under
no obligation to provide complainant with a reasonable accommodation.
The AJ noted that the agency nevertheless made numerous efforts
to work with complainant, such as offering her "time out" periods,
counseling regarding stress management, and less busy work hours.
As to complainant's allegation that she was forced into retirement,
the AJ found that complainant's own testimony reveals that this was not
the case. The AJ further found that complainant failed to show that any
of the agency's reasons for its actions were pretext for discrimination
based on age or disability. The AJ found no genuine issues of material
fact in dispute, and concluded with a finding of no discrimination.
On appeal, complainant, through counsel, contends that she established a
claim of age discrimination because she provided a sworn statement that
her supervisor and other agency officials told her she should retire and
submitted paperwork in support of her claim for disability retirement.
Complainant alleges that the efforts to force her into retirement
constitute direct evidence of discrimination based on age, or at least
they raise an inference of age discrimination. As to disability,
complainant contends that her doctors and a therapist confirmed that
complainant suffers from a disability (major depression), which affected
the major life activity of interacting with others. Complainant contends
that the agency violated the Rehabilitation Act by failing to provide
her with reasonable accommodations. Complainant additionally notes that
the agency argued that it was complainant's conduct in being rude to a
sick, elderly patient which resulted in her reassignment. Complainant
contends however, that her conduct in the workplace was foreseeable in
light of her medical condition and resultant inability to adequately
manage stress on the job and the agency's refusal to accommodate her
disability.4 Complainant contends that with a reasonable accommodation,
she would have been able to perform her job.
We find that Claim (4) was properly dismissed for failure to state a claim
as the letter was written by a patient's relative, not an agency employee.
This decision is limited to the remaining claims.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. In this case,
we discern no genuine issue of material fact in dispute.
Hostile Work Environment Harassment - Claims (2), (3) and (5)
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2)
the harassment was based on her membership in a protected class.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). In this case,
the alleged harassing incidents, taken together, are not sufficiently
severe or pervasive to alter the terms or conditions of employment and
create an abusive or hostile environment.
Disparate Treatment - Claims (2) and (5)
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Assuming arguendo that complainant was disabled under the Rehabilitation
Act, and that she otherwise established a prima facie case of
disability and age discrimination, the agency has articulated legitimate
non-discriminatory reasons for its actions; namely, complainant was
given the letter of counseling on March 6, 2003, because of her rude
and inappropriate treatment of a patient and his spouse. As to the
reassignment to the Home Based Primary Care Office, complainant was
reassigned in an effort to move complainant to a less stressful area while
she was waiting for her retirement. The record is devoid of evidence
that the agency's reasons are mere pretext for discriminatory animus.
Constructive Discharge - Claim (6)
We find that complainant did not suffer an adverse action by virtue of
the fact that OPM approved her application for disability retirement.
However, to the extent that Claim (6) constitutes an allegation that
complainant was constructively discharged when she was forced to request
disability retirement, we note that a discriminatory constructive
discharge occurs when the employer, motivated by discriminatory
animus, creates working conditions that are so difficult, unpleasant,
or intolerable that a reasonable person in complainant's position
would feel compelled to resign. Doe v. Social Security Admin.,
EEOC Appeal No. 01A114791 (Feb. 21, 2003). In other words, the
employee is essentially forced to resign under circumstances where the
resignation is tantamount to the employer's termination or discharge
of the employee. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574
(8th Cir. 1997). The Commission has adopted a three-pronged test for
establishing a constructive discharge. Complainant must show that:
(1) a reasonable person in her position would have found the working
conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Serv., EEOC Appeal
Nos. 01976756, 01976792 (Dec. 29, 2000) (citing Taylor v. Department
of Defense, EEOC Request No. 05900630 (July 20, 1990)). We find that
there is no indication in the record that complainant was subjected
to intolerable working conditions which arose out of conduct which
constituted prohibited discrimination on the basis of her disability.
Although complainant states that she was told that her supervisors wanted
to terminate her and that she should retire, complainant concedes that
no one told her she would be fired if she did not retire. Id. at 39.
The record contains no evidence that complainant's termination was
proposed or impending. Moreover, the record does not persuade us that a
reasonable person in complainant's position would have found the working
conditions intolerable. Complainant further stated that her reason for
submitting her disability retirement paperwork was "to keep them quiet."
Record evidence indicates that what complainant meant by "keep them quiet"
was that she could prevent management from firing her while the disability
retirement paperwork was being processed, so that she would have more
time to find a job with another agency. See Complainant's Deposition,
at 35-7. Accordingly, we find that complainant was not subjected to
discrimination.
Reasonable Accommodation - Claim (1)
The record indicates that in March 2002, complainant requested to work in
a less stressful environment. Subsequently, management requested medical
documentation in support of such request. By letter dated December
10, 2002, management again requested additional medical information in
order to determine if complainant was an individual with a disability.
By letter dated December 20, 2002, management informed complainant that
her medical documentation did not identify which duties complainant
could not perform. In response, complainant submitted a letter from
her physician on January 9, 2003, stating that complainant has anxiety
disorder, major depression and irritable bowel syndrome. The physician
additionally stated that complainant's current stressful work environment
is causing complainant's medical conditions to be exacerbated. He further
stated that complainant would benefit from a more structured work
environment (such as a cubicle or enclosed space), with less staff
interaction and fewer distractions. He further stated that a set
schedule of work days and hours would benefit complainant. On March 3,
2003, the agency's Medical Center Director informed complainant that she
and her doctor had still failed to identify which of her job duties she
could not perform, and whether she could perform the essential duties
of her position, with or without a reasonable accommodation. The Medical
Center Director further noted that complainant and her doctor failed to
provide sufficient information for a determination on whether she has
an impairment that substantially limits her in a major life activity.
Under the Commission's regulations, 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. 29 C.F.R. �� 1630.2(o)
and (p). In order to be entitled to protection from the Rehabilitation
Act, complainant must make the initial showing that she was a "qualified
individual with a disability." Assuming arguendo that complainant was
an individual with a disability within the meaning of the Rehabilitation
Act, we conclude that complainant has not proven, by a preponderance
of the evidence that she was a qualified individual with a disability.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
The record evidence indicates that complainant could not perform the
essential duties of the Medical Clerk position. A review of the position
description (PD) reveals that "Secretary/Receptionist" functions are
essential functions of this position. These functions involve a great
deal of multi-tasking and interaction with others. For instance, the
PD states that the Unit Clerk is the only administrative member of the
treatment team, and must respond "quickly to emergent situations in a
calm, efficient manner . . .", serve as "first-line receptionist for
patients, families, visitors or consulting staff . . .", demonstrate
"sensitivity and compassion in interactions with families/visitors . . .",
serve as "focal point for receiving telephone calls . . ." The Clinical
Service Coordinator stated that complainant was finding it difficult to
handle more than one thing at a time, and they had received complaints
about complainant's customer service. Complainant's Manager (M1) stated
that complainant had admitted to behaving inappropriately in terms
of customer service. M1 stated that complainant had a history of low
tolerance when she was multi-tasking. M1 also stated that she had written
in complainant's file that complainant was not capable of performing in
a stressful setting. The Union President also testified that complainant
would become very irritable, yell at people, and abuse the patients when
she had to perform multiple tasks. Indeed, even complainant's physician
noted that complainant required a position with less staff interaction
and fewer distractions. Based on the above, we find no dispute that
complainant was not qualified for the Unit Clerk position.
We note that an employer is not required to create a job for a disabled
employee. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir. 1997); see
also Woodard v. United States Postal Serv., EEOC Appeal No. 01A21682 (July
29, 2003); EEOC Enforcement Guidance: Workers Compensation and the ADA,
EEOC Notice No. 915.002 at 21 (September 3, 1996). It is complainant's
burden therefore, to make the showing that there was another vacant,
funded position, for which she was qualified and to which she could
have been reassigned. We find that complainant has failed to make
this showing. As complainant has not shown that she is a "qualified
individual with a disability", the agency has not unlawfully failed to
provide her with a reasonable accommodation.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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
January 10, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 This letter of counseling was for allegedly being rude and
disrespectful to a patient and his spouse on March 5, 2003. In her
deposition, complainant conceded that she made the statements that she was
accused of making to the patient. See Complainant's Deposition at 32.
3 The Investigator noted in the Investigative Summary that as of
the date of the filing of the complaint, several attempts were made to
contact complainant for an interview concerning her allegations, however,
complainant failed to return phone calls or respond to messages.
4 Complainant explains that on many occasions she received complaints
from patients, and communicated those complaints to nurses who were
either non-responsive or delayed in their response to the complaints of
the patients, and this created an unbearable amount of stress for her.
See Complainant's Declaration; Appeal Brief, at 2.
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01A54148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036