0120081932
08-09-2011
Connie Addison, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Connie Addison,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081932
Agency No. 200I-0544-2006103836
DECISION
On March 18, 2008, Complainant filed an appeal from the Agency’s
February 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 Commission deems the appeal timely and accepts it 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 (LPN) at the Agency’s Medical
Center facility in Columbia, South Carolina. The record indicated that
Complainant was born with a speech impediment and had a stroke in 2000.
In May 2006, Complainant injured her shoulder while on the job. As a
result of the injury, she was assigned light duty performing functions
such as answering the phones while her shoulder healed. In July 2006,
Complainant’s supervisor (Supervisor) began working with Complainant.
The record indicated that in August 2006, the Supervisor became aware that
Complainant complained of right-side weakness, dizziness, and blackouts.
Based on her complaints, the Supervisor was concerned of Complainant’s
ability to safely work with patients. As a result, the Supervisor ordered
Complainant to schedule a fitness-for-duty examination to determine if
Complainant could function in her LPN position.
Complainant was seen on September 8, 2006, by an Agency physician
(Physician). The Physician found Complainant to be medically
unfit for duty and recommended that Complainant have a complete
examination before returning to work. The Physician noted that his
concerns for Complainant’s health stemmed from conditions outside of
Complainant’s stroke in 2000. After the examination on September 8,
2006, Complainant, her union representative (Representative) and the
Human Resources Specialist (HR Specialist) met. The HR Specialist told
Complainant that she would have a choice between using her own leave
or Authorized Absences (AA) if the Supervisor approved her use of AA.
Complainant left the workplace without requesting any leave. Based on
Complainant’s failure to request leave, Complainant was charged with
being Absent without Official Leave (AWOL). Subsequently, the AWOL was
changed to sick leave, compensatory time and annual leave.
On December 28, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American)
and disability (speech impediment, stroke and injured shoulder) when:
1. Complainant was ordered to submit to a fitness for duty exam on or
around September 8, 2006; and
2. Complainant was charged as AWOL from September 8, 2006, through
September 19, 2006.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
The Agency found that Complainant has not shown that she is protected
by the Rehabilitation Act. Further, the Agency determined that it
provided legitimate, nondiscriminatory reasons for its action. Finally,
the Agency also held that Complainant failed to show that the Agency’s
reasons were pretext for discrimination. As such, the Agency concluded
that Complainant failed to establish her claims of discrimination based
on her race and/or alleged disability.
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at 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”).
Medical Examination
Initially, we note that the Agency’s analysis of whether complainant
was a person with a disability need not be addressed as the limitations in
the Rehabilitation Act regarding disability-related inquires and medical
examinations apply to all employees. The Rehabilitation Act was amended
in 1992 to apply the standards of the Americans with Disabilities Act
(ADA) to complaints of discrimination by federal employees or applicants
for employment. See EEOC Enforcement Guidance on DisabilityRelated
Inquiries and Medical Examinations of Employees Under the Americans with
Disabilities Act (Enforcement Guidance - Disability Related Inquiries),
No. 915.002 (July 26, 2000); Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities (March 25, 1997); and EEOC
Enforcement Guidance on Preemployment DisabilityRelated Questions
and Medical Examinations (Enforcement Guidance - Preemployment)
(October 10, 1995). Because the restrictions on employers with
regard to disability-related inquiries and medical examinations apply
to all employees, and not just to those with disabilities, it is not
necessary to inquire whether the employee is a person with a disability.
Enforcement Guidance - Disability Related Inquiries, p. 3. Instead,
we focus on the issue of whether the Agency’s order that complainant
undergo a Fitness-for-Duty examination was lawful.
The Rehabilitation Act places certain limitations on an employer’s
ability to make disability-related inquires or require medical
examinations of employees only if it is jobrelated and consistent
with business necessity. 29 C.F.R. § 1630.13(b),.14(c). Generally, a
disabilityrelated inquiry or medical examination of an employee may be
"jobrelated and consistent with business necessity" when an employer
"has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired
by a medical condition; or (2) an employee will pose a direct threat
due to a medical condition." Enforcement Guidance - DisabilityRelated
Inquiries, at 1516. It is the burden of the employer to show that its
disabilityrelated inquiries and requests for examination are jobrelated
and consistent with business necessity. Id. at 1523.
Upon review of the record, we find that the Supervisor averred that
he had a conversation with Complainant regarding how she felt bored
with her light duty assignment. The Supervisor expressed hope that
Complainant could recover from her shoulder injury and return to her
regular duties. The Supervisor stated that during the conversation,
Complainant indicated that she was concerned about returning to her
LPN position and feared caring for patients. The Supervisor averred
that Complainant complained of blackouts, dizziness, and memory loss.
Based on the conversation, the Supervisor sent Complainant for a
fitness for duty examination. Complainant challenged the Supervisor’s
testimony of the alleged conversation. However, Complainant did not
provide any evidence to support her claim. Upon review, based on the
conversation between the Supervisor and Complainant, we find that the
Supervisor had a reasonable belief that Complainant’s condition would
impair her ability to perform the essential functions of her position.
Accordingly, we conclude that Complainant has not shown that the request
for a fitness for duty examination violated the Rehabilitation Act.
Disparate Treatment
As to claim (2), Complainant alleged that she was discriminated against
when she was placed in AWOL status from September 8, 2006, through
September 19, 2006. A claim of disparate treatment based on indirect
evidence is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant
to prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of a
prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency’s actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual
with a disability. 29 C.F.R. § 1630.2(g)(1). The Supervisor indicated
that Complainant had left work without requesting leave. As a result,
Complainant was placed in AWOL status which was changed when she put in
her request for leave. We find that the Agency has provided legitimate,
nondiscriminatory reasons for placing Complainant in AWOL status.
Complainant asserted that the Agency’s reason was false for she
believed that she had been told by the HR Specialist that she was to
receive AA for the time she was away from the office. The HR Specialist
averred that he lacked the authority to grant any type of leave for
Complainant. Furthermore, the HR Specialist stated that he specifically
had a conversation with Complainant explaining that her situation did
not fall under the appropriate use of AA. Therefore, we conclude that
Complainant has not shown that the Agency’s reasons were not pretext
for discrimination based on race and/or presumed disability.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 9, 2011
__________________
Date
2
0120081932
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081932