Linda P. Reid, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 13, 2009
0720070077 (E.E.O.C. Nov. 13, 2009)

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

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0720070077