Susan M. Taylor Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 16, 2003
01A24005_r (E.E.O.C. Dec. 16, 2003)

01A24005_r

12-16-2003

Susan M. Taylor Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


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