0120060102
05-16-2008
Nancy S. Lewandoski, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Nancy S. Lewandoski,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200601021
Hearing No. 250-2004-00056X
Agency No. 200L-0598-2002104416
DECISION
Complainant filed an appeal from an agency's final action dated September
7, 2005, finding no discrimination with regard to her complaint. In her
complaint, complainant alleged discrimination: (1) based on disability
(latex/latex powder) when since August 2002, the agency failed to provide
her a reasonable accommodation to her disability; and (2) in reprisal for
prior EEO activity when she received a verbal counseling on February 3,
2004.
The record indicates that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On August 31, 2005, the AJ, after a hearing, issued a decision finding no
discrimination, which was implemented by the agency in its final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged
actions. The AJ noted that after her allergic reaction in January
2002, complainant requested that the agency provide her with a pair
of gloves to protect her from coming into contact with the allergens
to which she was exposed at work. After a long and involved search,
the agency provided complainant with Neoprene gloves to which she was
not allergic. The agency, upon complainant's doctor's request, also
provided her personal computer-use devices.
The AJ stated that the essential functions of complainant's position
as a GS-11 Pharmacist must be performed at the agency's North Little
Rock (NLR) facility, i.e., to fill the IV orders and narcotic orders,
to verify that drugs being dispensed from the bar code machines match
a physician's orders, to supervisor the pharmacy technicians, and to
attend BCMA meetings. The AJ indicated that complainant's impairment was
potentially life-threatening which could occur at any time that she was
exposed to latex which was present throughout the hospital. The AJ stated
that complainant did not make any argument that the hospital environment
in which she worked could be altered, without undue hardship, such that
she would be able to perform her duties at the agency's NLR facility.
The AJ further indicated that despite complainant's claim that she should
be permitted to work at home, she did not dispute the fact that certain
functions of her position could not be performed unless she was present at
the NLR facility; nor did she dispute the fact that these functions were
essential. Complainant also claimed that she could come to the facility
only to perform the particular functions which must be done on-site,
and this would lower her exposure to latex. However, the AJ stated that
exposure to latex was possible any time at which complainant was at the
agency's facility and any exposure was potentially life-threatening.
The AJ determined that complainant could not safely be at the facility,
even on a part-time schedule, and her working at home on a part-time
basis was not an effective accommodation.
With regard to the alleged verbal counseling, complainant's supervisor
explained that at the time of the incident, complainant, instead of filing
narcotics and then returning to verifying orders, sent out electronic
messages to her coworker, who volunteered to help her verifying orders
while she checked-in the delivery narcotics. The supervisor stated that
the volunteer pharmacist was assigned to the OP pharmacy and complainant's
foregoing conduct had disrupted the staff and flow of work in the OP
pharmacy.
The AJ also added that although complainant claimed that she was denied
official time, it was not connected to her EEO activity. Rather, she
asked for the official time in order to respond to her supervisor's
request, unrelated to her EEO activity, to provide the supervisor with
information about the persons bringing gloves and/or blue/green sheets
into her work area as claimed by complainant. Complainant was never
granted that official time to respond to supervisor's request to which
she never replied.
The AJ stated that complainant failed to show by a preponderance of
the evidence that the agency's proffered reasons were pretextual.
Upon review, the Commission finds that the AJ's factual findings of
no discriminatory intent were supported by substantial evidence in the
record. Assuming (without deciding) that complainant was an individual
with a disability, the Commission finds, as the AJ did, that complainant
failed to show that she was denied a reasonable accommodation or that any
agency actions were motivated by discrimination. Complainant was not a
qualified employee because she could not perform the essential functions
of the position. Complainant also failed to identify any vacant funded
position for which she was qualified to perform the duties thereof.
The AJ noted that the agency did offer complainant to transfer to the OP
pharmacy and also to another facility in Arizona, but she refused both.
The agency's final action is AFFIRMED because the AJ's decision is
supported by substantial evidence.
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
5/16/2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120060102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036