0196489o
07-14-2000
Geneva Massingill, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Geneva Massingill v. Department of Veterans Affairs
01964890
July 14, 2000
Geneva Massingill, )
Complainant, )
)
) Appeal No. 01964890
) Agency No. 95-2137
Togo D. West, Jr., ) Hearing No. 310-95-5432X
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
A. Introduction
Geneva Massingill (complainant) timely initiated an appeal to the Equal
Employment Opportunity Commission (EEOC) from the final decision of the
agency concerning complainant's claims that the agency violated Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq. The appeal is accepted in accordance with EEOC Order No. 960,
as amended.<1>
The issue on appeal is whether the agency discriminated against
complainant on the basis of disability (multiple sclerosis) when: (1) on
July 23, 1993, she was removed from the night-tour; (2) in December 1993,
she was required to take a fitness-for-duty examination, which included
a back stress test; and, (3) on April 8, 1994, she was separated from
her position. Complainant filed a formal EEO complaint on June 22, 1994,
claiming that the agency discriminated against her as referenced above.
The complaint was accepted and investigated, and complainant requested
an EEOC hearing. Following a hearing, the EEOC administrative judge
(AJ) issued her recommended decision (RD) which found that complainant
was discriminated against in all respects. Thereafter, the agency
issued its final agency decision (FAD) which found no discrimination.
Complainant now appeals the FAD.
B. Preliminary Background
According to the record, complainant was employed by the agency in
approximately 1981 as a Registered Nurse (RN) at the VA Medical Center
in Waco, Texas. In 1985, while an RN, she was diagnosed with multiple
sclerosis (MS). Since 1991, complainant was employed on the night-shift
because of the increased pay level on that shift. Complainant's MS
remained relatively stable over the years. According to various agency
officials, the MS did not interfere with complainant's nursing duties
except to the extent that she sometimes used an electric, three wheel
vehicle to enter the building and to make her nursing rounds, and
sometimes used a cane or walker. The record shows that complainant had
a disabled parking place at the hospital.
In June 1993, complainant incurred a back injury while attempting to lift
a female veteran patient. Complainant was not at work for approximately
one month but on July 20, 1993, her chiropractor released her to full duty
with �no limitations.� However, upon her return to work, the Chief Nurse
(the Chief) placed complainant, against her wishes, on the day- shift,
which was physically more tiresome because more patients were awake and
required care. While on the day-shift, complainant continued to ask
the Chief to move her (complainant) back to the night shift.
The Chief, in December 1993, requested that complainant undergo a
fitness-for-duty examination (the examination) in order to determine
whether she could fully perform the physical requirements of the RN
position. Complainant underwent the examination on December 14, 1993,
with a back-stress test conducted on December 16, 1993; on December 17,
1993, complainant complained that the back-stress test had aggravated
her preexisting back injury. According to complainant, her back pain,
after the test, was excruciating which rendered her unable to work.
Consequently, complainant reported the injury to the agency's personnel
office and completed Office of Workers' Compensation (OWCP) forms for
reinjury of her back and for emotional injury.
The fitness-for-duty report (the Report) revealed that complainant could
not lift 45 pounds or do repeated lifting, and that she had limited
abilities with pulling, bending, and squatting. According to the record,
an RN is required to be able to lift at least 40 pounds. In the Report,
the examiner also stated that complainant had enough impairment in
muscle and back function to limit her activities to light, medium work.
The Physician testified that complainant could most likely perform as
an RN with several individuals around to assist her with lifting but
that he did not recommend her working on the night-shift.
The Report was sent to the agency's Physical Standards Board (the Board),
which reviewed the Report and determined that complainant did not meet
the physical standards for an RN position, which included being able
to lift 45 pounds, at a minimum. On February 28, 1994, the Board
recommended that efforts be made by the Chief to find complainant
a position, �within current staffing and FTE� that complainant could
perform within her medical restrictions. On March 2, 1994, the Chief
responded to the Board that �with the constraints on medical center FTE
and the demands of patient care, I have determined that the physical
requirements cannot be modified to the extent necessary to accommodate.�
The Chief testified that she did not recall making �affirmative� efforts
to find complainant employment elsewhere at the agency.<2>
The agency's Personnel Chief (PC), testified that the agency was unable to
find a vacant position to which complainant could be reassigned. According
to the PC, he was familiar with the vacant positions available at the
medical center. The PC testified that at some point prior to complainant's
termination, she had indicated that she might be interested in a nursing
instructor position but that there were no vacancies for such a position
during the relevant time period. Consequently, complainant was terminated
on March 24, 1994, effective April 8, 1994.
Complainant admits that, at the time of her termination, she could not
perform the functions of an RN position;<3> there is no evidence that
she was offered reassignment to another type of position prior to the
removal. Complainant appears to indicate that she had not asked for
another position during the termination process. However, there is
no evidence that her physical condition prevented her from accepting
a position, other than an RN position, which would accommodate her
physical limitations.<4> Complainant testified that, shortly after
her removal, the Chief offered her agency employment, on a �fee basis�
which would accommodate her disabilities. Complainant stated that she
did not accept the offer because she did not then know �what way (her)
case was going to be.� At the hearing, complainant conclusively stated
that she was currently unable to work at all and was not presently seeking
reemployment with the agency.<5> Rather, according to complainant, her
complaint centers on her belief that she is now totally and permanently
disabled because of her back injury and because of the manner in which
the agency treated her.<6>
C. AJ Findings
Initially, the AJ found that complainant was an individual with a
disability by virtue of her MS. The AJ also concluded that complainant
met the definition of a �qualified individual with a disability� because
she was performing the essential functions of the RN position prior to
the fitness-for-duty examination. The AJ further found that complainant
established a prima facie case
of disability discrimination primarily because of the agency's removal of
complainant from the night-shift and its subsequent failure to accommodate
her in another position.
The AJ further found that the agency articulated a legitimate,
nondiscriminatory explanation for its actions, namely that: (1)
complainant was removed from the night-shift because of her deteriorating
condition and the fear of future risk of injury; and, (2) it was
impossible (apparently following the fitness-for-duty examination) to
accommodate complainant as an RN and there were no other available agency
positions.
The AJ also found pretext. First, the AJ found that the agency failed
to show that reasonably accommodating complainant as a registered nurse
would pose an undue hardship on the agency. The AJ found that there
was no reason to remove complainant from the night-shift other than the
Chief's unjustified fear of complainant's MS condition. The AJ concluded
that the Chief's decision in this regard was contrary to record evidence
showing that complainant was adequately performing the duties of an RN
and was not a safety concern.
Regarding complainant's separation, the AJ found that the agency failed to
show that accommodating complainant in her RN position would have posed
an undue hardship, noting that the agency failed to make any attempt to
determine if accommodation was possible. Nonetheless, the AJ agreed that
at the time of complainant's removal she was unable to perform as an RN
or return to work because of the subsequent back injury. However, the AJ
ultimately found discrimination with regard to complainant's disability.
The AJ concluded that the agency's failure to accommodate complainant's
disability and its requirement that she undergo a fitness-for-duty
examination led to her inability to work as an RN and her subsequent
termination.
D. FAD
The agency rejected the AJ's RD. Regarding complainant's reassignment to
the day-shift, the agency found that the responsible officials properly
removed complainant from the night-shift in accordance with agency policy
and because of concern that complainant's back injury might affect her
ability to work as a lead registered nurse on the night-shift. The agency
particularly emphasized that the responsible officials acted under the
routine policy of returning off-tour employees to the day-shift for
light duty and assistance following an on-the-job injury.
Regarding the examination, the agency found that complainant was properly
referred for the test because of the steady decline in her physical
abilities due to her MS, as evidenced by her progressive use of ambulatory
devices to assist her in performing her duties before and after her June,
1993 injury. According to the agency, the examination was necessary in
order to determine complainant's physical capabilities, particularly with
respect to working the night-shift. The agency also concluded that the
back stress test was not administered in a discriminatory way. According
to the agency, the examining physician showed complainant an audiovisual
film detailing the back stress test and specifically advised complainant
that a different less rigorous protocol could be substituted.
E. Analysis and Findings
Pursuant to 64 Fed. Reg. 37,644 (1999) (to be codified at 29 C.F.R. �
1614.405 (a)), all post-hearing factual findings by an Administrative
Judge 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 omittted). 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). Accordingly, we will review the
AJ's findings herein under these standards.
The threshold question in a case of discrimination based on disability
is whether an individual is a disabled person within the meaning of the
Rehabilitation Act.<7> Under 29 C.F.R. �1630.2(g), an individual with a
disability is defined as one who (i) has a record of physical or mental
impairment which substantially limits one or more of such persons'
major life activities, (ii) has a record of such an impairment, or
(iii) is regarded as having such an impairment. Major life activities
include caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. � 1630(i).
The individual must also be a qualified individual with a disability,
i.e., one who, with or without reasonable accommodation, can perform the
essential functions of the position in question. 29 C.F.R. � 1630.2(m).
In addition, under Commission regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o)(p).
The AJ found, and the agency concedes, that complainant was disabled
under the regulations by virtue of her MS, which, at a minimum,
substantially limited her in her ability to walk. We find that
this conclusion is supported by substantial evidence in the record.
The record shows that at the time of these events, complainant sometimes
made use of an electric, three wheel vehicle to enter the hospital and
to make nursing rounds. She also sometimes used a cane or walker due to
limited mobility. Additionally, complainant was given a disabled parking
spot by the agency. Whether complainant was a qualified individual
with a disability is more problematic. However, the AJ's finding that
complainant was a qualified individual with a disability, at least until
the date of her fitness-for-duty examination, is adequately supported
by the testimony of various agency officials and by reports from
complainant's physicians. Whether complainant was a qualified individual
with a disability at the time of her removal will be discussed more fully below.
1. Reassignment to the day-shift and fitness-for duty examination
We find that the AJ's conclusion that complainant was discriminated
against with regard to the reassignment and the Examination is supported
by the record. The Chief reassigned complainant to the day-shift and
ordered the Examination because of the Chief's purported fear that
complainant's condition was deteriorating and because she (the Chief)
was concerned about the safety of the complainant and the patients.
However, an agency cannot exclude qualified individuals with disabilities
from employment based upon fear of future risk of injury, without
engaging in the individualized assessment required by the Rehabilitation
Act into whether their disabilities pose a �direct threat� of substantial
harm.
A �direct threat� is defined as: �a significant risk of substantial
harm� which cannot be eliminated or reduced by reasonable accommodation.
29 C.F.R. �1630.2(r). The agency has the burden of proof regarding
whether there is a significant risk of substantial harm.
The AJ's conclusion that complainant was, without proper basis,
reassigned from the night-shift to the day-shift and ordered to take
the Examination, is supported by substantial record evidence. Supporting
the AJ's conclusion are the facts that: (1) complainant was released to
full duty by her chiropractor on July 23, 1993 following her back injury
and in October 1993 produced a second statement from the chiropractor
again releasing her to duty; (2) prior to the back injury, complainant,
according to her direct-line supervisor, was competently performing
the duties of an RN position and had not injured any patients because
of her physical condition; and, (3) there is no other evidence in the
record that complainant's MS had substantially deteriorated by 1993
or in conjunction with the initial back injury. Moreover, the Chief
testified that she made the change in shift and ordered the Examination
based only on her own �observations� of complainant's physical condition,
and despite recommendations from complainants direct-line supervisor
and the full-release to duty by complainant's chiropractor. Given this
evidence, we find that the agency failed to prove that complainant was
a direct threat as defined by the statute.
2. Removal
We concur with the AJ, but for somewhat different reasons, that the
agency violated the Rehabilitation Act when it terminated complainant.
The AJ found that at the time of complainant's removal, she was unable
to perform her duties or return to work as an RN because of her back
and overall physical condition. Complainant admits as much. However,
reasonable accommodation includes �reassignment to a vacant position.�
See EEOC Regulation 29 C.F.R. � 1630, App.2(o).
In determining whether a reassignment is possible, the employer, as
part of an interactive process, should ask the employee about his/her
qualifications and make �good faith� efforts to identify appropriate
vacancies. Woodman v. Runyon, 132 F.3rd. 1330, 7 AD Cas. (BNA) 1189
(10th Cir. 1997). When an employer has completed its search, identified
whether there are any vacancies, notified the employee of the results,
and either offered an appropriate vacancy to the employee or informed
him/her that no appropriate vacancies are available, the employer will
have fulfilled its legal obligation.
There is some confusion in the record regarding whether complainant
would have accepted any type of agency work at the time of her removal,
though we note that none of the medical reports submitted during the
relevant time period indicates that complainant was unable to work in
a position at all. In any case, we find that the agency was under an
obligation to examine reassignment of complainant and in fact, did make
some efforts in this regard. However, we find that the agency did not
fulfill its obligations.
The primary burden to find complainant another position lay initially
with the Chief. As noted above, the Chief admitted that she did not make
extensive efforts to find complainant another position as she (the Chief)
was most concerned with the RN positions. There is no evidence that the
Chief sought out other types of positions for complainant except for her
previous attempts to find complainant a position in Nursing Education. In
short, the evidence does not show that the Chief made good faith efforts
to keep complainant employed with the agency.
The PD testified that there were no vacancies available at the hospital
when complainant was terminated. However, the record is scant regarding
the exact efforts made by the PD to find complainant employment
at the Waco Medical Center; there is also no evidence that the PD
inquired regarding possible vacancies at other VA hospitals. Finally,
our finding that the agency failed to offer complainant a reasonable
accommodation prior to removing her from employment is bolstered by the
agency's action in offering complainant employment on a fee basis shortly
after her removal. The agency's belated offer tends to indicate that
reassignment to a position within complainant's restrictions would have
been possible, if the agency had truly engaged in good faith efforts
to locate a position, prior to removing complainant. In view of the
foregoing, the Commission finds that the termination was discriminatory.
CONCLUSION
Accordingly, after a careful review of the record, the Commission hereby
REVERSES the agency's final decision and REMANDS complainant's complaint
for further processing in accordance with the ORDER below.
ORDER (D1199)
The agency is ORDERED to take the following remedial actions:
1. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant to
29 C.F.R. � 1614.501, that she would have received had she not been
discriminatorily transferred from the night-shift to the day-shift on
July 23, 1993. This backpay shall apply to the period between July 23,
1993 and January 1, 1994, and include the night-shift differential pay
to which complainant was entitled.<8> The agency shall also determine
the appropriate amount of backpay and interest and other benefits due
complainant, that she would have been entitled to had the agency made
sufficient efforts to secure for her a position at the agency other than
the position of RN. The agency shall determine from appellant at what
point she became unable to work in any position at all and calculate
backpay from the date of the back stress test until the date that she
was unable to work in any capacity.
These determinations on back pay shall be made no later than ninety (90)
calendar days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
2. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. Thereafter, the agency shall issue a final
decision within ninety (90) days of the date this decision becomes final.
The agency shall submit a copy of the decision to the Compliance Officer
at the address set forth below.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Department of Veterans Affairs,
Waco, Texas, VA Medical Center facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30)calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of theCommission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405). All requests and arguments must be submitted
to the Director, Office of Federal Operations, EqualEmployment 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and
hereinafter referred to as 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 (R1199)
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:
07-14-00
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On November 9, 1999, revised regulations governing EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed.Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 HT at 348.
3 See, HT at 207-208.
4 See HT at 206.
5 See HT at 218.
6 See HT at 218-19.
7 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
8 By complainant's admission, she was unable to perform the functions
of an RN as of January 1, 1994 after her back was injured during the
fitness-for-duty examination.