0720070077
11-13-2009
Linda P. Reid, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Linda P. Reid,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720070077
Hearing No. 430-2006-00154X
Agency No. 2004-0652-2005103197
DECISION
Concurrent with its August 30, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ. For the
following reasons, the Commission REVERSES the agency's final order.
ISSUES PRESENTED
The issues presented are whether the AJ properly found that complainant
had been discriminated against on the basis of her disability when she
was not selected for one of three nursing positions, and if so, whether
the award of compensatory damages by the AJ was excessive.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Licensed Practical Nurse (L.P.N.), GS-6, at the agency's VA Medical
Center facility in Richmond, VA. On October 28, 2005, complainant filed
an EEO complaint alleging that she was discriminated against on the
bases of race (African American), disability (chondrolamacia patella),
and in reprisal for prior protected EEO activity arising under Title
VII and the Rehabilitation Act when:
1. the agency failed to accommodate complainant's physical disability
from June 9, 2005, through August 22, 2005; and
2. on July 6, 2005, complainant was notified that she was not selected
for Registered Nurse (R.N.) positions in 1Q Hospice, Hemodialysis,
and the Cardiac Catheterization Lab.
When the agency failed to complete the investigation within the required
180 days as per 29 C.F.R. � 1614.108(e), complainant requested a hearing
before an EEOC Administrative Judge (AJ) on May 4, 2006. The AJ held
a hearing on March 7, 2007, and issued a final decision which included
her award of remedies on July 18, 2007.
In her decision, the AJ found that with respect to claim 1, on April 26
2005, complainant had requested priority placement in a R.N. position
as an accommodation of her disability. Complainant did not present any
argument or evidence in support of this claim either in the investigation
or at hearing. The AJ found that complainant was not entitled to a
promotion to a R.N. position as a form of reasonable accommodation.1
Complainant also did not show that the agency had denied her a reasonable
accommodation regarding her L.P.N. position during the time period in
question. The AJ concluded that complainant had not shown that she had
been discriminated against on the bases of race, disability or reprisal
with respect to claim 1.
Regarding the complainant's claim that she had not been selected for
three R.N. positions to which she had applied in 2005, the AJ made the
following findings. By letter dated June 27, 2005, the Nurse Recruiter
notified complainant that she did not meet the minimum requirements for
an appointment as a R.N. because she did not have the minimum of either
two or three years of nursing practice in the specialized areas to which
she had applied. The Nurse Recruiter also noted complainant's ongoing
reasonable accommodations in her current position, stating that it not
appear that complainant would be capable of performing the essential
functions of the positions.
The AJ found that the Associate Chief of Staff for Nursing (Associate
Chief) had testified that if circumstances warranted it, the minimal
qualifications standards such as years of experience could be amended,
and that R.N.s had been hired or detailed into positions without those
years of experience. The Associate Chief also testified that the agency
did not conduct an individualized assessment of complainant with respect
to the subject positions. Her testimony also included the following
statement:
"We wouldn't hire someone to be a nurse that had such severe physical
limitations because - for two reasons. One, I have to make sure the
patients are put in the hands of safe caregivers because if the patient
needs assistance in transferring and turning, if the patient starts to
fall, that the nurse assigned to them can appropriately intervene. Then
the second thing I always have to look at is if an employee wants to
be hired as an R.N. and has any kind of physical limitations, because
we do hire employees with physical limitations, are they severe enough
that we couldn't reasonably accommodate them in one of our existing
R.N. positions, I have to assure that I'm not putting a potential
employee at risk to further exacerbate their existing condition or
reinjure themselves."
The AJ concluded that complainant was a qualified individual with
a disability. The AJ noted that complainant's medical restrictions
included a limitation on lifting 10 pounds or less. Complainant possessed
a R.N. license at the time of her application to the positions. The AJ
found that contrary to the agency's assertions, "years of experience"
was not a prerequisite for the position and that R.N.s without those
years of experience had been assigned to specialized areas at the
facility. Therefore, the agency's articulated reason for complainant's
non-selection, failure to meet the minimum requirements for the positions,
was "unworthy of credence."
Further, with respect to complainant's possible risk of injury to herself
and to the patients due to her physical restrictions, the AJ noted that
the agency has the burden of showing that a significant risk or high
probability of substantial harm existed. In order to determine that a
significant risk exists, the agency had to conduct an individualized
assessment of the complainant, and not rely on the employer's own
subjective evaluation. The record evidence and testimony showed that the
agency had not conducted this individualized assessment of complainant's
medical restrictions and any reasonable accommodations that could be
offered in the context of the R.N. positions. She found that the agency
had not satisfied its obligations under the Rehabilitation Act.2
The AJ ordered as relief that the agency offer complainant a
R.N. position, with back pay and benefits, $20,000.00 in non-pecuniary
compensatory damages, $16,634.59 in attorney's fees, and the posting of
a notice to employees regarding the finding of discrimination.
The agency subsequently issued a final order rejecting the AJ's
finding as to claim 2 that complainant proved that she was subjected to
discrimination on the basis of disability, and filed this appeal with
the Commission.3
CONTENTIONS ON APPEAL
In support of its appeal of the AJ's decision, the agency argued that
complainant was not qualified for the positions to which she had applied
in that she did not "possess the requisite three years experience for
the positions as noted by management," and that without those minimum
qualifications she was not referred to the selecting official for
consideration. The agency further argued that as complainant should
not have prevailed at hearing, she is not then entitled to the award of
compensatory damages. Assuming arguendo that the Commission affirms the
finding of discrimination, the agency posits that an award of $20,000.00
is excessive.
In her reply brief, complainant urged the Commission to affirm the
AJ's finding of discrimination. Complainant pointed out that she is
qualified for the positions, as there is evidence in the record that
the agency would fill R.N. positions with individuals without three
years of experience. Complainant argued that her qualifications were
superior to at least some of the selectees, including one who was a new
R.N. and new to the nursing profession as well. Complainant had nearly
twenty years of experience as an L.P.N. Complainant also noted the AJ's
finding that the Associate Chief's explanation was not credible with
respect to the experience requirement. Complainant further urged the
Commission to affirm, at the least, the award of compensatory damages,
noting that the award was "if anything, low."
ANALYSIS AND FINDINGS
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Disability Discrimination
In making a finding of disability discrimination, the AJ found that
complainant was a qualified individual with a disability, and that the
agency put forth two reasons for not selecting her. The AJ found that
the first reason, that complainant had not met the minimum qualification
standard, to be unworthy of credence, as she made specific factual
findings that the agency would waive the years of experience requirement
when it found it necessary or convenient to do so based on difficulty in
filling a position. There was testimony at hearing that R.N.s were hired
after completing nursing school and passing their boards, but before they
had several years of experience. Although the agency argued on appeal
that complainant was not qualified based on her lack of experience as
a R.N., we note that the agency did not provide any specific evidence
which would rebut the AJ's factual finding in this regard. We find that
the AJ's findings are supported by substantial evidence in the record
and we will not disturb this finding on appeal.
The AJ found that the second reason complainant was not selected for
the R.N. positions was the Associate Chief's testimony that she posed
a substantial risk, or that she posed a direct threat, of harm to the
health or safety of herself or others. In order to exclude an individual
on the basis of future possible injury, the agency must show there
is a significant risk, i.e., a high probability of substantial harm;
a speculative or remote risk is insufficient. It must show more than
that an individual with a disability seeking employment stands some
slightly increased risk of harm. The burden of showing a significant
risk is on the agency. Selix v. United States Postal Service, EEOC Appeal
No. 01970153 (March 16, 2000). Moreover, such a finding must be based on
an individualized assessment of the individual that takes into account:
1) the duration of the risk; 2) the nature and severity of the potential
harm; 3) the likelihood that the potential harm will occur; and 4)
the imminence of the potential harm. Appendix to 29 C.F.R. Part 1630,
� 1630.2(r). A determination of significant risk cannot be based merely
on an employer's subjective evaluation, or, except in cases of a most
apparent nature, merely on medical reports. Rather, this requires that
the employer gather and base its decision on substantial information
regarding the individual's work and medical histories. Mantolete
v. Bolger, 767 F. 2d 1416, 1422-1423 (9th Cir. 1985).
The AJ concluded that the agency had not engaged in the individualized
assessment required, and made assumptions regarding complainant's ability
or inability to perform the functions of the R.N. positions. In the
absence of such an individualized assessment, the agency cannot show
that its concerns regarding any potential risk posed by complainant's
disability were supported by the facts of complainant's condition.
We therefore affirm the AJ's finding of discrimination based on
disability.
Award of damages
After the submission of evidence in support of her claim for compensatory
damages, the AJ awarded complainant $20,000.00 in non-pecuniary
compensatory damages. The agency argued that this amount was excessive
and not supported by the record. Complainant requested that we affirm
the award. We find that the award of compensatory damages award is in
line with our prior precedent.
Complainant offered testimony that that she became depressed, and
experienced difficulty sleeping and episodes of crying and overeating.
She also claimed to have suffered damage to her professional reputation
due to the nonselections. Complainant's husband offered testimony which
detailed the impact of the discrimination on complainant's relations with
her family. There is sufficient evidence to show that this emotional
distress, and other harm, is comparable to that described in other
Commission cases. In Flowers v. United States Postal Service, EEOC
Appeal No. 01A43114 (October 7, 2004), req. for reconsid. denied, EEOC
Request No. 05A50243 (January 11, 2005), the Commission awarded $20,000
in compensatory damages upon a showing that, despite other contributing
factors, the agency's disability-based discriminatory failure to hire
complainant resulted in sleeplessness, depression, emotional distress,
anxiety, loss of enjoyment of life and strained family relationships.
In Farrell v. Department of the Treasury, EEOC Appeal No. 07A20043 (May
5, 2003), the Commission awarded $20,000 in non-pecuniary compensatory
damages where a discriminatory non-selection occurred. There, the award
was based on testimony from complainant and his family as to emotional
distress, insomnia, anxiety, stress, depression, marital strain,
humiliation, loss of self-esteem, mental anguish, loss of enjoyment of
life, and injury to relations with family. The AJ's determination of
the amount of compensatory damages was supported by the record and prior
Commission precedent.
The attorney's fees award was not contested by the agency in its appeal
brief. We therefore affirm the AJ's award of $16,634.59 to complainant
for her attorney's fees.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the agency's
rejection of the AJ's finding of discrimination.
ORDER
Within sixty (60) days of the date this decision becomes final, the
agency is ordered to:
1. Offer complainant a R.N. position at the Richmond, Virginia VA
Medical Center, with back pay and benefits dating from July 6, 2005.
Complainant shall have fifteen (15) days from the date of the offer
to accept or decline the position. Upon acceptance, the agency shall
engage in the interactive process with complainant to determine what
accommodations may be necessary and effective, if complainant should
require a reasonable accommodation. If complainant should decline the
agency's offer of a position, the date of her declination shall be the
end date for any back pay due complainant.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant since July 6, 2005,
pursuant to 29 C.F.R. �1614.501, no later than sixty (60) 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."
3. The agency shall pay complainant $20,000.00 in non-pecuniary
compensatory damages.
4. The agency shall pay complainant $16,634.59 in attorney's fees.
5. The agency shall provide training to the involved management officials
regarding their responsibilities under EEO laws, with a special emphasis
on the Rehabilitation Act.
6. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the Compliance Officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
7. The agency shall post a notice in accordance with the paragraph below.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its 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 the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
______11/13/09____________
Date
1 We also note that, in Reid v. Department of Veterans Affairs, EEOC
Appeal No. 0120053993 (January 30, 2007), an unrelated appeal, the
Commission affirmed another AJ's finding of no discrimination regarding
complainant's claim that she was not reasonably accommodated in 2003
when the agency did not convert her to a R.N. position.
2 In light of her finding of discrimination on the basis of disability,
the AJ did not discuss complainant's claims of race and reprisal
discrimination.
3 Although the agency's FAD states that it is rejecting the AJ's
decision, we note that the agency's appeal only contests the finding of
discrimination for claim 2, and does not argue that the finding of no
discrimination regarding claim 1 was incorrect. We therefore interpret
the FAD to mean that is only partially rejecting the AJ's decision,
and we affirm the AJ's finding, and the agency's implementation of it,
that complainant was not discriminated against for claim 1.
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0720070077
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0720070077