01a41471
09-30-2005
Kem B. Hyche v. Department of Veterans Affairs
01A41471
September 30, 2005
.
Kem B. Hyche,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A41471
Agency No. 200L-0586-2003100529
DECISION
Complainant timely initiated an appeal from a final agency decision dated
December 4, 2003, concerning her formal EEO complaint of unlawful
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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Respiratory
Therapist at the agency's Medical Center in Jackson, Mississippi.
Complainant filed a formal complaint on December 9, 2002. Complainant
claimed discrimination on the bases of race (African-American) and
disability (blindness/bilateral post-corneal transplantation).<1> The
instant complaint was comprised of the following two claims:
(1) On November 3, 2002, the agency informed complainant that
no determination had been made on her request for a reasonable
accommodation to be removed from a rotating schedule and placed in a
permanent day schedule due to difficulties with night driving in her
commute to and from work; and
By letter dated June 4, 2003, the agency advised complainant that the
above referenced request for a reasonable accommodation was denied.
In her race discrimination claim, complainant claimed that the agency
allows a similarly situated white co-worker to work a permanent day shift,
but is denying the day shift to her as a reasonable accommodation for
her eye disorder. Complainant also claimed that her eyes constantly
itch, hurt, and water, and that she is bothered by the glare during
night driving. Complainant indicated that she is concerned about corneal
infection and rejection, and noted that there are problems in this regard
with her right eye.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.<2>
In its final decision, the agency viewed complainant's claims in the
context of disparate treatment, and found that complainant failed
to establish a prima facie case of race or disability discrimination,
but that even assuming that she did so, complainant was unable to show
that the agency's legitimate, non-discriminatory reasons were a pretext
for discrimination. Regarding claim (1), the agency determined that
the delay identified therein was created by the need to request more
detailed medical information from complainant's physician, and that
complainant could not show that this reason was untrue or a pretext for
discrimination. Regarding claim (2), the agency found that management
denied complainant's request based on its interpretation of its personnel
guidance providing that a reasonable accommodation need only be granted
if it allows the employee to perform an essential function of their
position, and management's determination that commuting to work is not an
essential function of complainant's position. The agency determined
that complainant failed to show that this reason was a pretext for race
or disability discrimination.
In viewing complainant's claims as denial of a reasonable accommodation,
the agency determined that complainant failed to establish that she was
a qualified individual with a disability as defined by the Rehabilitation
Act, and that it owed her no duty to provide a reasonable accommodation.
The agency found that even assuming that complainant established that
she was a qualified individual with a disability, commuting to work was
not an essential function of her position, and that it properly denied
her request for a schedule change to avoid night driving.<3>
On appeal, in pertinent part, complainant contends that the agency
improperly identified her eye impairment as strabismus. Complainant also
contends that the agency did not fully consider the implications of her
bilateral corneal transplant impairment. Additionally, complainant avers
that it is not only driving to work at night which causes her symptoms
(eye pain and dryness) to become worse, but also working at night as well.
In response, the agency states that whether complainant's eye ailment
is characterized as strabismus or bilateral corneal transplant, it duly
considered her actual limitations, consisting of itchy, painful, and
watery eyes. The agency notes that complainant changes her contentions
on appeal, namely that working at night, as well as driving at night,
increases her symptoms. However, the agency argues that complainant
presents no evidence to show how working during day hours would alleviate
her condition, given record evidence that once complainant is inside
the facility, her eyes are not affected by day or night conditions.
The agency found that the record showed that although complainant had a
certain degree of discomfort associated with her eye symptoms, it has not
interfered with her ability to perform the full functions of her position.
Disparate treatment claim
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish
a prima facie case by demonstrating that she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000).
The Commission determines that the agency proffered a legitimate,
non-discriminatory reason regarding claim (1); namely, that the delay was
caused by a need to acquire clarification from complainant's physician.
Additionally, the record reflects that complainant submits no evidence
to show that this reason is untrue or a pretext for race or disability
discrimination. As to claim (2), the agency's proffered legitimate,
non-discriminatory reason in its determination, based on its personnel
guidance, that complainant is not entitled to the accommodation she
requests, and its policy and practice to assign no one to a permanent day
shift.<4> Complainant produces no evidence that this reason is untrue
or a pretext for race or disability based discrimination. In fact,
contrary to complainant's contention, the record confirms that the white
comparative whom she identifies does not encumber a permanent day shift
position, which further belies her claim of disparate treatment based
on race.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to reasonably
accommodate the known limitations of a qualified individual with a
disability, unless the agency can show that accommodation would cause
an undue hardship. See 29 C.F.R. 1630.2(p); EEOC's Enforcement Guidance
on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (revised October 17, 2002) (Guidance). The Guidance
also provides that upon notice from a qualified individual with a
disability of the need for an accommodation, the agency has a duty
to engage in the interactive process. The Commission's regulations
contemplate the creation of an accommodation through modifications or
adjustment to the work environment, or to the manner or circumstances
under which the position held or desired is customarily performed, that
would enable a qualified individual with a disability to perform the
essential functions of that position. 29 C.F.R. � 1630.2(o)(1). The
Guidance allows an agency to choose among reasonable accommodations as
long as the chosen accommodation is effective, and states that, while the
preference of the individual with a disability should be given primary
consideration, ...[the agency] has the ultimate discretion to choose
between effective accommodations. See Guidance, Question 9, pp. 8-9;
also see 29 C.F.R. Part 1630 app. 1630.9 (1997).
Here, despite complainant's contentions to the contrary, we find that
the record shows that upon learning of her request for a permanent day
schedule because of her vision problem, the agency complied with the
Commission's regulations and guidelines, as set forth above.
First, we find that the agency satisfied its duty under the Rehabilitation
Act to engage in the interactive process. Specifically, the record
reflects that the agency reviewed complainant's request for a permanent
day schedule, as well as her May 10, 2002 medical statement, and that
complainant's physician was contacted by telephone to discuss her needs.
The record contains a follow-up letter from complainant's physician,
dated May 22, 2002, as a result of the agency's inquiry, confirming
the content of the May 10, 2002 letter. Additionally, in response to
her request for a reasonable accommodation, we find that the record
reflects that complainant was offered a permanent evening shift (3:30
pm to midnight), which would require her to only drive home in the dark,
which she rejected.
Second, we find that the agency did not violate the Rehabilitation Act
when, after engaging in the interactive process, it declined to grant
complainant's request. EEOC regulations provide that �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.� See Appendix to Part 1630, at Section
1630.2(o). Any reasonable accommodation �should provide the qualified
individual with a disability with an equal employment opportunity� meaning
�an opportunity to attain the same level of performance, or to enjoy the
same level of benefits and privileges of employment as are available to
the average similarly situated employee without a disability.� Id. at
Section 1630.9. This section further indicates that, �the reasonable
accommodation requirement is best understood as a means by which barriers
to the equal employment opportunity of an individual with a disability
are removed or alleviated...�
However, after careful review of the record, the Commission determines
that the facts of this case fail to demonstrate that night driving
creates a �barrier� to complainant's employment. The record reflects
that complainant works eight straight weeks on the day schedule, followed
by two weeks on an evening or night schedule, and that night driving is
therefore limited to these two week periods. Complainant contends that
she requires the requested accommodation because the glare from night
driving causes her eyes to itch, water, and dry-out, which increases
the chance of corneal graft rejection. However, in her affidavit,
complainant stated that night driving is not actually the issue,
but rather the risk of graft rejection. The May 10, 2002 physician's
letter complainant submits indicates that �It is reasonable to expect
that night driving is difficult at present due to glare;� however,
there is nothing in the record supporting a finding that night driving
would further injure complainant's eyes or increase the risk of graft
rejection. Moreover, the record is devoid of any evidence to indicate
that complainant's vision precludes her from legally driving at night.
In her affidavit, complainant states that night driving �puts a little
strain on my eyes,� and indicates that they hurt more after driving
at night. Although complainant argues on appeal that working at night
is also detrimental to her vision, record evidence fails to support
this contention. Complainant's physician indicates that complainant's
vision would be unaffected by the time of day once she was working inside
the facility. We also note record evidence reflects that after arriving
at the facility to work the night shift, complainant treats her eyes
with drops, which substantially corrects any ill-effect from the glare
experienced during her commute.
Under the circumstances of this case, where complainant's medical
documentation failed to confirm that driving to work at night (or working
the night shift) would result in an injury to her eyes, or increase the
risk of graft rejection, or that driving at night was unduly dangerous
or difficult, we find that the agency did not violate the Rehabilitation
Act when it denied complainant's request for a permanent daylight shift
as a reasonable accommodation for her vision impairment.
Therefore, after a careful review of the record, we AFFIRM the agency's
final decision finding no discrimination.
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
September 30, 2005
__________________
Date
1The record reflects that complainant received a corneal transplant in
June 1998; and that complainant is �legally blind,� but has essentially
normal vision with the aid of specially fitted contact lens.
2On appeal, complainant contends that she requested a hearing, not a
final agency decision. However, the record contains documentation that
complainant requested a final agency decision on September 23, 2003.
3For the purposes of analysis only, the Commission will assume without
so finding, that complainant is a qualified individual with a disability.
See 29 C.F.R. � 1630.2(g); 29 C.F.R. � 1630.2(m).
4The agency acknowledges three exceptions: a named manager and two
respiratory therapists working in the Intensive Care Unit under a separate
union agreement.