01995281
12-27-2001
Dorothea A. Dillman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Dorothea A. Dillman v. Department of Veterans Affairs
01995281
December 27, 2001
.
Dorothea A. Dillman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995281
Agency Nos. 97-0325, 97-1453
Hearing Nos. 130-99-8060-X, 130-98-8055-X
DECISION
Complainant timely initiated an appeal from the agency's final
decision 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.,<1> and Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges she was discriminated against
on the bases of disability (fibromyalgia) and reprisal (prior protected
activity under Title VII) when:
(1) on or about June 24, 1996, she was reassigned to the Emergency
Room/Ambulatory Care Unit;
on August 14, 1996, she was denied a transfer to the Intensive Care Unit
(ICU);
on August 14, 1996, she was denied twelve months of Educational Leave;
she was repeatedly requested to submit a �Nurse III Performance�; and
on October 19, 1996, she was denied the opportunity to attend a
�Telephone Triage� training seminar.
For the following reasons, the Commission REVERSES and REMANDS the
agency's final decision.
The record reveals that complainant, a Nurse Grade III, at the agency's
Central Alabama Veterans Health Care System - Eastern Campus in
Tuskegee, Alabama, sought EEO counseling and subsequently filed formal
EEO complaints with the agency on August 30, 1996, and April 10, 1997,
alleging that the agency had discriminated against her as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination. Specifically, the AJ found that complainant
failed to demonstrate that similarly situated employees not in her
protected classes were treated differently under similar circumstances.
The AJ also found that even assuming, arguendo, complainant did establish
a prima facie case of disability discrimination the agency articulated
legitimate, nondiscriminatory reasons for its actions which were not shown
to be pretextual. The AJ further concluded that complainant failed to
establish a prima facie case of reprisal discrimination. In particular,
the AJ found that complainant did not show there was a causal link between
her prior protected activity and the alleged adverse employment actions.
The agency's final decision implemented the AJ's decision. On appeal,
complainant contends that based on the AJ's recommended findings
and conclusions, �he either had not read the record, or . . . ha[d]
simply ignored pertinent parts thereof.� Complainant also contends
that the agency's FAD failed to address the fact that a federal jury has
previously returned a $25,000 verdict in complainant's favor because of
reprisal discrimination. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final decision.
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non- moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
After a careful review of the record, the Commission finds that the
AJ erred when he concluded that there was no genuine issue of material
fact in this case. In finding no discrimination regarding complainant's
request to be reassigned back to ICU, the AJ found that complainant was
not subjected to disparate treatment in that there were no vacancies in
ICU for shifts of less than 12 hours.
Complainant contends that she is a disabled employee within the meaning
of the Rehabilitation Act, and as such, is entitled to reasonable
accommodation. Reasonable accommodation means (i) modifications
or adjustments to a job application process that enable a qualified
applicant with a disability to be considered for the position he or she
desires; (ii) modifications or adjustments to the work environment, or
to the manner or circumstances under which the position held or desired
is customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position; (iii)
modifications or adjustments that enable a covered entity's employee with
a disability to enjoy equal benefits and privileges of employment as are
enjoyed by its other similarly situated employees without disabilities.
29 C.F.R. � 1630.2(o)(1)(i)(ii).
This may include, but is not limited to, making facilities accessible,
job restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modifications of equipment or
devices, appropriate adjustment or modification of examinations, training
materials or policies, and provision of qualified readers or interpreters.
29 C.F.R. � 1630.2(o)(2).
The obligation to make reasonable accommodation applies to all services
and programs provided in connection with employment. Interpretive
Guidance on Title I of the Americans With Disabilities Act, Appendix
to 29 C.F.R. � 1630.9. Since the ability to obtain a transfer into a
different position is a among the �benefits and privileges of employment
of employment ...enjoyed by ...other similarly situated employees without
disabilities,� the agency could not deny complainant the opportunity
to transfer into an ICU position solely because she would require a
reasonable accommodation to perform an ICU position.
In addition, the hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also,
29 C.F.R. � 1614.109(c) and (d). �Truncation of this process, while
material facts are still in dispute and the credibility of witnesses is
still ripe for challenge, improperly deprives complainant of a full and
fair investigation of her claims.� Mi S. Bang v. United States Postal
Service, EEOC Appeal No. 01961575 (March 26, 1998). See also, Peavley
v. United States Postal Service, EEOC Request No. 05950628. Under these
circumstances, the Commission finds that there are unresolved questions
of material fact, including facts relevant to the issue of whether
complainant is a qualified individual with a disability who is entitled to
reasonable accommodation and, if so, whether the denial of her request
for a transfer constituted a failure to reasonably accommodate her.
Accordingly, judgment as a matter of law for the agency should not have
been granted.
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, the Commission REVERSES
the agency's final decision dated May 27, 1999, and REMANDS the matter
to the agency in accordance with the decision and ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ordered to submit a request to the Hearings Unit of the
Birmingham District Office for further processing. The agency is also
directed to submit a copy of the complaint file to the EEOC Hearings
Unit within 30 calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. �
1614.109 and the agency shall issue a final action in accordance with
29 C.F.R. � 1614.110.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 27, 2001
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.