0120082881
12-10-2008
Michelle Lee, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Michelle Lee,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082881
Agency No. 200J-0537-2007101999
DECISION
On June 13, 2008, complainant filed an appeal from the agency's May 21,
2008, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Licensed Practical Nurse, GS-6, in the Podiatry Clinic at the Jesse
Brown Veterans Affairs Medical Center in Chicago, Illinois. Complainant's
supervisor during the relevant time period was the Nurse Manager for
the Specialty Clinics (RMO1) (African-American, no disability), and
her second level supervisor was the Chief of Nursing Services (RMO2)
(Caucasian, no disability).
The record reflects that on March 6, 2007, RMO2 notified complainant
that an allegation of patient abuse was made against her and that she
was being temporarily reassigned from the Podiatry Clinic to the Supply
Procurement Division (SPD), effective immediately, while the Board of
Investigation conducted an investigation into the allegation. On the
same date, complainant contacted a physician about pain she was feeling in
her left arm. Complainant returned to work on March 8, 2007 with a note
from her doctor indicating that she could resume work with restrictions,
including limited pushing, pulling, and lifting with a wrist splint.
On or around March 12, 2007, complainant provided RMO1 with a copy
of her March 8, 2007 doctor's note listing her work restrictions.
On March 19, 2007, RMO1 issued complainant a letter requesting further
medical documentation in order to make a determination on her request
for light duty. Also on March 19, 2007, complainant alleged that she
injured her arms, neck, and shoulders when she was assigned duties which
involved lifting SCD and IV units.
On or around March 20, 2007, complainant submitted a note from her doctor
indicating that she could resume work with restrictions including "no
lifting, no repetitive work, no pushing, no pulling until next appointment
[in three weeks]." On March 21, 2007, RMO2 notified complainant that
she was being temporarily reassigned back to Nursing Services "effective
immediately until further notice." Complainant was ordered not to have
any patient contact during the reassignment. Complainant was informed
of her work, lunch, and break schedules, and she was required to ask
permission if she needed to leave her work area.
On March 23, 2007, RMO2 provided further instruction, ordering complainant
to sit at a desk with no work assignments in a hallway outside the Nursing
Services Office. Complainant alleged that her desk was placed in an
unfavorable location with poor lighting, RMO2 did not permit her to use
the telephone or computer, and RMO2 did not allow her to socialize with
her coworkers unless she was at lunch or on break. Complainant further
alleged that she was given a chair with no arms and that RMO2 ordered her
to speak with the EEO Office in order to obtain a chair with arm rests.
Complainant also alleged that on March 28, 2007, RMO2 asked a timekeeper
to watch complainant to make sure she did not leave work early that day.
On April 6, 2007, complainant submitted a doctor's note indicating more
specific restrictions, including minimal lifting of no more than 3 lbs.,
no grasping, and no left upper extremity rotational movement. On April
13, 2007, RMO2 notified complainant, based on the doctor's statement of
April 6, 2007, she was being temporarily reassigned to the EEO Office
and the Nursing Educator effective April 16, 2007. On May 1, 2007,
complainant was temporarily reassigned to the Lakeside Division to work
with the Education Service based on her medical restrictions. Complainant
was not allowed to have any patient contact during her reassignments.
On August 6, 2007, RMO2 informed complainant that the Administrative Board
of Investigation did not identify any patient abuse, although complainant
was found to have difficulty interacting with others. Complainant was
ordered to attend customer service training, and she was temporarily
reassigned to Education Service due to her medical restrictions at that
time.
Complainant filed an EEO complaint dated April 27, 2007, alleging that
she was discriminated against on the bases of race (African-American),
disability (left arm, hand), and in reprisal for prior protected EEO
activity under Title VII and the Rehabilitation Act when: (1) she was
denied a reasonable accommodation; and (2) she was subjected to a hostile
work environment.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that she was subjected to discrimination as alleged. Specifically,
the agency decision found that complainant failed to establish that
she was a qualified individual with a disability and that complainant
did not establish that she was subjected to a hostile work environment
based on disability, race, or in reprisal for her prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination. Complainant reiterates arguments made below and alleges
that she has been subject to further discrimination and harassment.
In response, the agency urges the Commission to affirm its final
decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
Reasonable Accommodation Claim
In order to establish that complainant was denied a reasonable
accommodation, complainant must show that: (1) she is an individual with
a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified
individual with a disability pursuant to 29 C.F. R. � 1630.2(m); and (3)
the agency failed to provide a reasonable accommodation. See Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (October 17, 2002) (Guidance).1
Next, complainant must establish that she was a "qualified individual with
a disability," which is defined as an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of the position held or desired. 29 C.F.R. � 1630.2(m). Here,
we assume without finding that complainant was a qualified individual
with a disability within the meaning of the Rehabilitation Act.
Upon review, we find that complainant has not demonstrated that she was
denied a reasonable accommodation based on her disability. The record
reflects that complainant was provided with light duty within her
restrictions once she provided medical documentation to the agency.
Although complainant argued that she should have been provided an
accommodation immediately after she was reassigned to SPD, the record
reflects that agency officials were unaware of her request or need
for an accommodation when the decision was made to reassign her after
complainant had been accused of patient abuse. Moreover, complainant was
provided with an accommodation after she submitted medical documentation
in mid-March 2007.
Complainant additionally objected to some of the work she was assigned and
argued that the majority of her light duty reassignments required her to
do work outside her restrictions, such as lifting heavy objects. However,
both RMO1 and RMO2 submitted statements that complainant was given work
within her restrictions once she provided proper medical documentation.
RMO2 stated that complainant was temporarily reassigned to a position
with no work assignments on March 20, 2007 until the agency determined a
proper accommodation for her. Complainant was subsequently reassigned
to an office with work within her restrictions after she submitted
further medical documentation on April 6, 2007. Here, credibility
determinations before a live fact-finder would have best served to
determine whether complainant was regularly given work within her
restrictions when she was provided with the temporary reassignments.
However, complainant withdrew her request for a hearing before an AJ,
which leaves this Commission with only the investigation and report
provided by the agency. We are not persuaded, based on the record of
investigation, that complainant has proven by a preponderance of evidence
that she was forced to work outside of her restrictions or that she was
denied reasonable accommodation. We remind complainant that she carries
the burden of proving the allegations raised by providing sufficient
evidence to allow a reasonable fact-finder to conclude in her favor.
She failed to meet this burden here. Furthermore, we note that although
protected individuals are entitled to reasonable accommodation under
the Rehabilitation Act, they are not necessarily entitled to their
accommodation of choice. See Guidance at 16.
Hostile Work Environment
Complainant alleged that she was subjected to a hostile work environment
when she was repeatedly denied a reasonable accommodation; on March 23,
2007, she was assigned to sit on a chair in the hallway and was told her
schedule for lunch and breaks while another nurse with an injury was not
treated in the same manner; on March 28, 2007, RMO2 asked complainant
why she was defiant and then threatened to change her tour of duty and
issue her a written counseling; on March 28, 2007, RMO2 asked another
employee to stay and make sure complainant did not leave early; and on
April 5, 2007, RMO1 required complainant to submit a request for leave
the day before taking leave and informed the complainant "things happen
when you file complaints."
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). To establish a prima facie case of harassment, complainant
must show that: (1) she is a member of a statutorily protected class
and/or was engaged in prior EEO activity; (2) she was subjected to
unwelcome verbal or physical conduct related to her membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on her membership in that class and/or her prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that complainant failed to provide
sufficient evidence in the record to show that the cumulative incidents
she cites are sufficiently severe or pervasive to create a hostile work
environment. We note that we have already determined that complainant
was provided with a reasonable accommodation; the nurse with an injury
complainant alleged was treated more favorably was not similarly situated
to her; complainant's tour of duty was never changed; and complainant was
never issued a written counseling. Moreover, RMO1 denied stating that
"things happen when you file complaints," and there was insufficient
evidence to establish that RMO1 made such a statement. We also find
no persuasive evidence in the record to show that a reasonable fact
finder would find that any of the alleged harassment was motivated by
unlawful animus towards complainant's protected classes.2 Complainant
herself suggests in the record that RMO1 and RMO2 began harassing her
after she made a non-EEO complaint against RMO1 regarding her management
style sometime in 2006. Therefore, we find that complainant failed to
establish a prima facie case of harassment.
Finally, we note that complainant raises new allegations of discrimination
on appeal. Complainant is advised to initiate contact with an EEO
Counselor if she wishes to pursue the additional allegations she raises
for the first time on appeal. The Commission will not accept new claims
raised on appeal.
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, the agency's
final decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 10, 2008
Date
1 An "individual with a disability" is one who: (1) has a physical
or mental impairment that substantially limits one or more major life
activities; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. 29 C.F.R. � 1630.2(g). Major life activities
include, but are not limited to, caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working. 29 C.F.R. � 1630.2(i).
2 Here, we again assume without finding that complainant was a qualified
individual with a disability within the meaning of the Rehabilitation
Act.
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0120082881
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082881