01A24005_r
12-16-2003
Susan M. Taylor v. Department of Veterans Affairs
01A24005
December 16, 2003
.
Susan M. Taylor
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24005
Agency No. 2003-1216
Hearing No. 220-A1-8156X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, formerly a staff nurse at the
agency's Houston, Texas facility, filed a formal EEO complaint on
September 15, 2000, alleging that the agency discriminated against her
on the basis of disability (back surgery, back problems) when it failed
to accommodate her and terminated her employment.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ concluded that complainant failed
to prove that the agency violated the Rehabilitation Act. Initially,
the AJ found that complainant found that complainant demonstrated that she
had a history of a back condition which caused significant limitations and
that the agency was aware of this condition, but further determined that
the agency was not aware that complainant had any significant limitations
at the time she was hired. Regarding complainant's termination, the AJ
found that the agency proferred legitimate, non-discriminatory reasons for
its action that were not persuasively rebutted by complainant as pretext
for unlawful discrimination. Regarding complainant's accommodation claim,
the AJ also found that complainant was not a "qualified individual
with a disability" under the Rehabilitation Act because she could not
perform the essential functions of her nursing position as a nurse.
The AJ also found that complainant failed to prove that she actually
requested an accommodation or prove that there was a position available
to which she could have been reassigned. The agency fully implemented
the AJ's decision.
On appeal, complainant contends that the AJ erred when she found no
violation of the Rehabilitation Act. In response, the agency requests
that we affirm its final order.
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.
The record reveals that complainant was selected by the agency for the
position of registered nurse in May 2000. She was given a temporary
appointment in this position until she was boarded by the agency for a
permanent position. After reporting to work on May 21, 2000, complainant
was given approximately four weeks of orientation. During orientation,
complainant received CPR training.
Complainant alleges that the CPR instructor became frustrated with
her during training and stated that she would not want complainant to
perform CPR on any member of her family. Complainant stated that she
told the instructor that what she said was embarrassing and unfair.
Complainant felt that the instructor apologized in an insincere manner.
The instructor testified that it was her duty to tell nurses how
to perform CPR correctly. The instructor stated that complainant
acted unprofessionally when she was corrected and got in her face.
The instructor stated that she wrote a Report of Contact concerning the
incident, which was forwarded to the nurse recruiter. Another instructor
present at the CPR class testified that she witnessed the incident
and claimed that complainant threatened the instructor and had to be
restrained by another employee.
Complainant alleges that the agency failed to reasonably accommodate her
back condition after she began working on the hospital floors on June
20, 2000. Complainant testified that she thought that her job tasks
"would not have included pulling people up in the bed with Hoyer lifts
and getting out of the bed with Hoyer lifts...pulling and tugging and
doing bed baths and changing their diapers...." The nurse recruiter who
interviewed complainant testified that she told complainant during the
interview that the job included "demanding direct care," and complainant
did not express any concerns at that time about being able to do the job.
On June 23, 2000, complainant suffered a back injury while moving an
obese patient. She was escorted to the Employee Health unit by her
supervisor and thereafter assigned a light duty desk job. On June 28,
2000, complainant's physician restricted her from any work.
Complainant's supervisor testified that after complainant was injured, she
questioned the agency physician about why complainant had been cleared for
work if she was unable to safely lift patients. Complainant stated that
she did not have any back problems prior to June 23, 2000. Complainant
stated that since her injury, she cannot sit for long periods, drive
distances, go to the grocery story, lift infants, stand and cook, ride
a bicycle, mow the lawn, nor engage in intimate relations.
On her pre-employment report of medical history, complainant stated that
she had spinal surgery in 1995 and 1997 and had a history of recurrent
back pain. Nevertheless, complainant stated that she had "no complaints
at present." During her employment physical examination, complainant
also disclosed that she previously had back surgery, but the physician
evaluated complainant's back condition as "normal." Complainant further
testified that after accepting the position, she was merely told that she
would be a staff nurse but was not given a job description. Complainant
maintained that she worked as a team with another nurse who agreed to
share duties so that complainant avoided physically demanding tasks.
Complainant testified that no one explained to her that the position
involved heavy lifting. She stated that she thought they were going to
assign her to the charge area where she previously worked, which would
not have required physically demanding work.
The nurse recruiter who interviewed complainant testified that she told
complainant during the interview that the job included "demanding direct
care," and complainant did not express any concerns at that time about
her physical ability to do the job.
The agency's Employee Health Physician testified that she cleared
complainant for work because complainant told her that although she
previously had back surgery, she had no limitations. The physician
stated that during the employment examination, she found no evidence
of back problems. The physician stated that after complainant's June
23, 2000 injury, complainant refused to be examined by her, but the
physician's assistant diagnosed complainant as having muscle pain
(myalgia) and arthritis, but found no shoulder sprain or strain.
Complainant's supervisor testified that when she hired complainant,
she took complainant on a tour of the unit and described the demanding
physical duties of her position. The supervisor stated that complainant
did not request any accommodation at that time. The supervisor maintained
that she did not learn of complainant's history of back problems until
the June 23, 2000 incident.
Complainant contends that she did not complete a Questionnaire for
Non-Sensitive Positions form (SF-85) when requested by her supervisor
because she was in pain at the time because of her June 23, 2000 injury.
She testified that she told her supervisor "I've had enough of this mess"
and "I'm not filling the form out today." Complainant stated that she
completed and submitted the form on August 15, 2000.
The supervisor stated that complainant was placed on light duty and
assigned desk work after the injury. The supervisor maintained that she
received a Report of Contact from the CPR instructor after complainant
was injured. The supervisor stated that complainant told her during
a telephone conversation that "I'm sick of all this bullshit that
went on today." The supervisor further stated that Human Resources
contacted her and said that complainant failed to properly complete
the Questionnaire for Non-Sensitive Positions form. The supervisor
maintained that when she asked complainant to immediately complete the
form, "she kind of just threw it back at me and said she didn't plan to
complete that." The supervisor stated that she issued a memorandum to
complainant wherein she directed complainant to complete and submit the
form no later than August 15, 2000. The memorandum stated that failure
to comply with this order in a timely manner would lead to complainant's
discharge.
The record contains a copy of the letter of termination dated August 29,
2000. The letter cites three reasons for complainant's termination:
disrespectful conduct toward the CPR instructor on June 7, 2000;
disrespectful conduct toward the nurse manager on June 23, 2000; and
failure to carry out supervisory instructions to complete an SF-85
questionnaire in a timely manner. The Chief Nurse Executive was the
deciding official on complainant's termination. She stated that it was
customary to terminate an employee who had three charges during their
temporary appointment term.
Disparate Treatment
Complainant has alleged both a claim of disparate treatment and failure to
reasonably accommodate her disability. 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 Committee for Mental Health for
Jamaica Community 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) she is an "individual with a disability"; (2) she
is "qualified" for the position held or desired; (3) she 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 Transportation, 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 her burden of proof, complainant must then demonstrate by
a preponderance of the evidence that the agency's proffered reason
is not the true reason and that it is a pretext for disability
discrimination. Id.
Following this established order of analysis, above, is not always
necessary where the record is fully developed and the agency has
articulated an explanation for its actions. In that case, the factual
inquiry may proceed directly to the third step of the McDonnell Douglas
analysis - the ultimate question of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Board of Governors v. Aikens,
460 U.S. at 713-14.
Upon review of the instant matter, we find that the agency has
articulated legitimate, non-discriminatory reasons for terminating
complainant. Specifically, the agency stated that complainant was
discharged for disrespectful conduct toward a CPR instructor on June
7, 2000; disrespectful conduct toward her supervisor on June 23, 2000;
and failure to carry out supervisory instructions to complete an SF-85
questionnaire in a timely manner. Complainant responds that she submitted
the SF-85 form on August 15, 2000, the deadline specified in a supervisory
memorandum. However, we note that complainant acknowledges that she
blatantly refused to accept or complete the form when she was first
asked to do so by her supervisor, which we find to be consistent with
the agency's statement that complainant failed to carry out supervisory
instructions to complete the SF-85 questionnaire in a timely manner.
While complainant contends that she did not complete the form when first
requested because she was in pain from her injury, there is no indication
that complainant communicated this to her supervisor; instead, complainant
boldly responded to the request by simply stating "I'm not filling the
form out today." Moreover, complainant failed to respond to the agency's
claim she displayed disrespectful conduct toward her supervisor during
a telephone conversation on June 23, 2000. Finally, while there is a
dispute about whether the CPR instructor embarrassed complainant during
training, there is eyewitness testimony that complainant confronted the
instructor in a threatening manner. We find that there is ample evidence
in the record to support the conclusion that complainant engaged in acts
of flagrant insubordination and disrespect during her temporary employment
status, and complainant has failed to prove that her termination was
motivated by discriminatory animus. Consequently, we find that the AJ
properly found that the agency did not subject complainant to unlawful
discrimination on the basis of disability when she was terminated.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation 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. �1630.9.
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). A "qualified" individual with a
disability satisfies the requisite skills and experiences for the job,
and is capable of performing the essential functions of the position with
or without reasonable accommodation. 29 C.F.R. 1630.2(m). This inquiry
is not limited to the position actually held by the employee, but also
includes positions that the employee could have held as a result of job
restructuring or reassignment. See Lynam v. United States Postal Service,
EEOC Appeal No. 01A22156 (March 13, 2003); see also Van Horn v. United
States Postal Service, EEOC Appeal No. 01960159 (October 23, 1998).
In general, an accommodation is any change in the work environment or
in the way things are customarily done that enables an individual with a
disability to enjoy equal employment opportunities. 29 C.F.R. Part 1630
App. 1630.2(o); EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (rev. Oct. 17,
2002) (Enforcement Guidance).
Assuming arguendo that complainant was an individual with a disability
under the Rehabilitation Act, the record indicates that the agency was not
given notice of complainant's need for any type of accommodation before
June 23, 2000. An agency's duty to provide a reasonable accommodation
does not arise until the disabled employee requests accommodation. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act (March 1, 1999) ("When an
individual decides to request accommodation, the individual or his/her
representative must let the employer know that s/he needs an adjustment
or change at work for a reason related to a medical condition.").
Complainant stated on her medical history form that she had "no complaints
at present" with her back and assured the agency physician of her fitness
for the nursing position when he inquired about her prior back surgery.
The physician stated that during the employment examination, complainant
assured her that she was physically capable of fully performing the duties
of a nurse. The physician stated that her examination confirmed that
there was no evidence of back problems, which led her to clear complainant
for the nursing position. Complainant stated that she confided in a
co-worker that she had back problems, but there is no evidence that her
private disclosure to the co-worker was relayed to her supervisor or
other management. Significantly, complainant testified that she was not
aware that the nursing position included physically demanding duties
that she might not be able to perform until after orientation ended
in mid-June 2000. Complainant maintains that she told her supervisor
that she once had back surgery in mid-June, but complainant's supervisor
testified that she did not learn that complainant had any back problem
until her injury. Even if complainant told her supervisor that she had
"back issues" shortly before she was injured, we find that this, without
more elaboration, was insufficient to give the agency notice that she
required accommodation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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
_December 16, 2003_________________
Date