01970918
09-18-2000
Lois Evey, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency,
Lois Evey v. Department of Veterans Affairs
01970918
September 18, 2000
Lois Evey, )
Complainant, )
) Appeal No. 01970918
v. ) Agency No. 95-0861
)
Hershel W. Gober, )
Acting Secretary, )
Department of Veterans Affairs, )
Agency, )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning her allegation that the agency violated the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq.<1> The
appeal is accepted by the Commission in accordance with 64 Fed. Reg.
37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
the complainant based on physical disability (hearing loss, obesity,
hypertension) and age (69) when it removed her from her position in
early 1995.
BACKGROUND
The complainant filed a formal complaint in February 1995 in which she
raised the issue identified above. Following an investigation of the
complaint, the complainant did not request an administrative hearing.
The agency thereafter issued a final decision in October 1996 finding
no discrimination. It is from this decision that the complainant now
appeals.
During the period in question, the complainant was employed as a direct
patient care nurse at the agency's facility in Pittsburgh, Pennsylvania.
The complainant was hired into that position in 1982, at which time she
weighed 291 pounds and had hearing loss in both ears dating back to 1953.
The complainant also testified that she has hypertension, a condition
she states is controlled through medication. The record reveals that,
notwithstanding these problems, the complainant received ratings of
�Satisfactory� or higher during her entire tenure with the agency,
including a rating of �Satisfactory� on her 1994 performance appraisal.
Regarding her hearing loss, the complainant testified that she wears
hearing aids, and that, as a means of accommodation, she requested that
co-workers look at her when they speak. The record also reveals that the
telephones at the complainant's work station contained hearing amplified
ear pieces.
In August 1994, the complainant's supervisor (Responsible Official 1,
RO 1) informed the Associate Chief of the Nursing Service (RO 2) that
she had some concerns about the complainant. These concerns were later
identified by RO 1 as the complainant's ability to get on the floor to
perform cardiopulmonary resuscitation (CPR); the fact that staff members
were afraid the complainant could not respond to an emergency; and that
the complainant's �[h]earing deficit occasionally led to misinterpretation
which necessitated immediate conflict resolution.�
According to RO 2, RO 1 told her that the complainant had difficulty
walking, breathing, and hearing. RO 2 noted, however, that she was unable
to get specifics from RO 1 regarding how these limitations affected
the complainant's performance. In response to RO 1's concerns, RO 2
recommended that the complainant undergo a fitness-for-duty examination
(FFDE) to evaluate her physical competency. She explained:
I was concerned that if a patient would become assaultive or assault
another patient, down in the back of the hallway while [the complainant]
was sitting at a desk, she may not be able to hear what was going on.
I was concerned about the patients. I was concerned that if a patient
would choke, or would go into respiratory or cardiac arrest, that perhaps
[the complainant] couldn't hear it, but even if she did hear it, she
would be physical[ly] unable to help that patient.
The complainant was thereafter examined on September 13, 1994.
The physician (Physician A) who performed the examination concluded
that the complainant had �[b]ilateral hearing impairment severe for
whispered voice.� His report states further, �[P]eople talk in low
voice, turning back to her hinders her hearing. She hears alarms,
buzzers, phone and most other ward noises. She could be accommodated
with personnel talking a little louder and fac[ing] her as she reads lips
fairly well.� The report states that the complainant weighed 323 pounds
and that she was able to �walk 120 feet at normal pace without dyspnea
or arrhythmia but with some hypertension, 170/90 after exercise.� The
report states that the complainant's hypertension and peripheral edema
�can be more effectively treated with diuretids and other medications.�
Finally, the report states that the complainant had yet to receive her
1994 CPR certification and that, although she could probably pass the
test if the demonstration dummy was on an elevated service, she did not
want to perform the demonstration if the dummy was on the floor.
The complainant was examined by an audiologist (Audiologist) in October
1994 who found that she had �bilateral moderate to profound sensorineural
hearing loss.� According to the Audiologist, this meant that, without
amplification, the complainant could not understand conversational speech.
The Audiologist stated further:
With amplification word recognition or the ability to understand speech
would still be limited through auditory impact only. [The complainant]
demonstrated good speech reading skills meaning that she takes advantage
of visual cues such as lip movements, facial expressions, and gestures
... Even with a hearing aid, she would express difficulty understanding
speech if someone attempts to talk to her from another room without the
availability of visual cues.
Based on Physician A's findings, a Physical Standards Board (the Board)
comprised of three physicians was convened in October 1994 to determine
whether the complainant should be permitted to continue in her position.
According to a memo dated October 13, 1994, the Board concluded that the
complainant could continue in her position if she met certain conditions,
including: (1) demonstrating a willingness to reduce her actual weight
to 291 pounds within six months to one year; (2) becoming certified in
CPR within six months; and (3) seeing Physician A every three months.
In response, the Chief of the Nursing Service (RO 3) prepared a
memo dated November 9, 1994, objecting to the Board's recommendation.
Specifically, RO 3 objected to the fact that the recommendation did not
address �the actual clinical concerns� of the complainant's ability to
function as a nurse. According to the memo, these concerns were that
the complainant's �hearing loss could be detrimental to patient safety�;
that her �extreme difficulty walking� would render her unable to quickly
respond to �any emergency or immediate patient care need� as well as
limit her ability to assist in instances when a patient became assaultive;
and that, although the complainant was scheduled to attend CPR training,
she was currently not certified.
The Board was thereafter ordered to reconvene and consider RO 3's
objections. The Board met on December 1, 1994, and thereafter reached
the following conclusion:
The [FFDE] revealed questionable findings to [the complainant's] hearing
loss, obesity, hypertension and difficulty/inability to perform CPR due
to her physical limitations. The Physical Standards Board concluded that
[the complainant] is physically incapable of performing the duties of
her position without hazard to self and/or others.
The physician who served as the head of the Board testified that he
believed RO 3's memo was designed to pressure the Board into changing its
earlier recommendation. This individual also testified that the Board,
prior to concluding that the complainant would constitute a hazard,
had not actually discussed that question. On December 13, 1994, the
complainant was issued a letter informing her that, based on the Board's
most recent recommendation, she would be removed effective December
30, 1994. Following filed settlement discussions, the complainant was
removed from her position in early 1995.
The record reveals that nurses are required to become certified in CPR on
annual basis and that the complainant had received her certification every
year until 1994. The complainant attended CPR training on December 15,
1994, but, when it came time to perform the demonstration on the dummy,
she was informed that she would have to perform it with the dummy on the
floor.<2> The complainant states that, because of a recent knee injury,
she refused to do it, but explained that she would get down on the floor
in the event of an actual emergency. What is apparent from the record is
that nurses who are unable to complete the CPR certification are allowed
to continue in their positions. In this regard, RO 3 testified that, when
a nurse is unable to perform the demonstration due to physical problems,
the certification is held in abeyance pending physical improvements.
She stated further that, if the nurse is still unable to perform the
demonstration within a certain period of time, accommodations are
considered. One accommodation RO 3 identified was ensuring that, when
the individual was on duty, there were enough staff members present to
perform the full gamut of possible resuscitation needs.
ANALYSIS AND FINDINGS
The burdens of proof required in a disparate treatment claim brought
pursuant to the Rehabilitation Act are modeled after those used in Title
VII law. See Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
To show that the agency's removal of her was discriminatory, the
complainant must show that: 1) she is an �individual with a disability�
as defined in 29 C.F.R. �1630.2(g);<3> 2) she is a �qualified individual
with a disability� as defined in 29 C.F.R. �1630.2(m); and (3) the agency
removed her from her position. Id. The complainant must also demonstrate
a causal relationship between her disabling condition and the agency's
reasons for the removal.
An �individual with a disability� is defined as someone who: (1)
has a physical or mental impairment which substantially limits one or
more of such person's major life activities; (2) has a record of such
an impairment; or (3) is regarded as having such an impairment. 29
C.F.R. �1630.2(g)(1)-(3). �Major life activities� include functions
such as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i).
As discussed, the complainant has three identified impairments, i.e.,
hearing loss, obesity, and hyper-tension. Regarding the complainant's
ability to hear, the Audiologist described the complainant's hearing
loss as �moderate to profound,� stating that, without amplification,
she is unable to understand conversational speech. The Audiologist
also found that, even when the complainant used her hearing aids,
she had difficulty understanding speech without the benefit of visual
cues. Based on this evidence, the Commission finds that, even with the
assistance of mitigating measures, the complainant's ability to hear is
substantially limited. See Sutton v. United Air Lines, 119 S.Ct. 2139
(1999). Accordingly, the Commission finds that the complainant's hearing
loss renders her an �individual with a disability.�
In considering the complainant's obesity and hypertension, we note that,
although both conditions affect the complainant's ability to walk,
it is not readily apparent that she is substantially limited in that
area. What is apparent, however, is that agency officials believed
that the complainant's ability to walk was substantially limited.
This is evidenced, in part, by RO 3's reference to the complainant's
�extreme difficulty walking� in her November 1994 memo. Accordingly,
the Commission finds that agency officials regarded the complainant's
obesity and hypertension as disabling conditions.
A �qualified individual with a disability� is defined as someone
�who satisfies the requisite skill, experience, education, and other
job-related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of such position.� 29 C.F.R. �1630.2(m).
The Commission finds sufficient evidence to conclude that the complainant
was capable of performing the essential functions of her position at
the time she was removed. In support of this finding, we note that
the complainant had successfully performed in her position for twelve
years and received a rating of �Satisfactory� on her 1994 performance
appraisal.
As discussed, the agency's position is that the complainant is not
qualified for her position because, as a result of her disabilities,
she constitutes a safety risk. In considering the agency's position,
the Commission notes it is well-settled that an agency cannot exclude
a qualified individual with a disability from employment based upon the
fear of a future risk of injury without engaging in the individualized
assessment required by the Rehabilitation Act as to whether the person's
disability poses a "direct threat" of substantial harm to others. 29
C.F.R. �1630.2(r); McGee v. Department of the Army, EEOC Appeal
No. 01953709 (February 20, 1998). In order to exclude an individual on
the basis of a possible future injury, the agency must show more than that
an individual with a disability poses a slightly increased risk of harm.
To determine whether an individual poses a direct threat, the factors to
be considered include: 1) duration of the risk; 2) nature and severity
of the potential harm; 3) likelihood that the potential harm will occur;
and 4) imminence of the potential harm. 29 C.F.R. �1630.2(r)(1)-(4).
The determination that an individual poses a direct threat must be based
on an individualized assessment of the individual's present ability
to safely perform the functions of the job, considering a reasonable
medical judgment relying on the most current medical knowledge and/or
the best available objective evidence. 29 C.F.R. �1630.2(r).
In the present case, the Commission finds that the agency has not
demonstrated that allowing the complainant to remain in her position
constituted a direct threat. Initially, it is not apparent to the
Commission that RO 1 and RO 2 had sufficient justification for concluding
that the complainant constituted a safety hazard and ordering the FFDE.
Not only had the complainant been performing successfully in her position,
but neither individual was able to identify a single instance when she
did not respond appropriately in an emergency situation and/or placed a
patient at risk. Instead, it is apparent that the impetus for the FFDE
was unsupported fears rather than actual facts.
Even more troubling, however, are the agency's actions in the aftermath
of the FFDE. Physician A's findings were inconclusive on whether the
complainant constituted a risk, let alone a substantial risk. In this
regard, although RO 1 and RO 2 were concerned that the complainant's
hearing loss would prevent her from responding to emergencies, Physician A
found that she �hears alarms, buzzers, phone and most other ward noises�
and that her hearing loss could be accommodated �with personnel talking
a little louder and fac[ing] her.�<4> Furthermore, although concerns
were expressed that the complainant's walking limitations would create
similar risks, the report does not support RO 3's conclusion that
the complainant had �extreme difficulty walking.� When the Board
initially considered Physician A's findings, it did not conclude
that the complainant constituted a substantial risk. Instead, it
merely recommended that the complainant be required to lose 32 pounds
within a year and that she become certified in CPR within three months.
Although the Board subsequently changed its opinion and found that the
complainant constituted a hazard, the Commission questions the validity
of that conclusion. Not only did the head of the Board testify that he
felt pressured to change his prior recommendation, but he also testified
that the Board never actually discussed whether allowing the complainant
to remain in her position constituted a risk.
The Commission is cognizant that the one safety hazard cited by the
agency for which there is support is the complainant's inability to
become certified in CPR. It is apparent from the record, however,
that nurses who are unable to get certified are allowed to continue in
their positions until such time as they can successfully perform the
demonstration. What that indicates is that nurses who do not receive
their CPR certification are not considered direct threats. Therefore,
the Commission concludes that it was the complainant's other perceived
problems that are responsible for the conclusion that she constituted
a direct threat.
Based on the foregoing, the Commission finds insufficient evidence
to support the agency's conclusion that allowing the complainant to
remain in her position constituted a direct threat. For that reason,
and because the complainant has established that she could perform the
essential functions of her position, we find that she is a �qualified
individual with a disability.�
Finally, the third step of the analysis requires the complainant to
demonstrate that she was removed from her position and that there
is a causal connection between the removal and her disability.
The complainant has clearly made such a showing, to the extent her
removal was specifically premised on concerns related to her disabilities.
Accordingly, because the complainant has satisfied all three elements,
we find she has established that the agency discriminated against her
based on disability when it removed her from her position.
Age
Even assuming that the complainant can establish a prima facie case of
age discrimination, we have already concluded that the reason for her
removal was because of her disabilities. For that reason, the Commission
is not persuaded that the complainant's removal was based on her age.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The agency shall offer the complainant reinstatement into her Nurse
position retroactive to the date on which she was removed from that
position.<5> The agency shall accomplish this action within sixty (60)
calendar days of the date this decision becomes final.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due the complainant, 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 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 provide training to RO 1, RO 2, and RO 3 regarding
the obligations and duties imposed by the Rehabilitation Act.
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 back pay and other benefits due the complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Medical Center in Pittsburgh,
Pennsylvania 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
_09-18-00______ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of Veterans Affairs, Pittsburgh, Pennsylvania Medical
Center, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The Department of Veterans Affairs, Pittsburgh, Pennsylvania Medical
Center, has been found to have discriminated against an individual
based on disability by removing her from her position and has been
ordered to offer to reinstate the individual with an award of back pay.
The Department of Veterans Affairs, Pittsburgh, Pennsylvania Medical
Center, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Department of Veterans Affairs, Pittsburgh, Pennsylvania Medical
Center, will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
Federal equal employment opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
29 C.F.R. Part 1614
01 On November 9, 1999, revised regulations governing the 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.
02 The record reveals that, prior to 1994, individuals had been
allowed to have the dummy on a raised surface while they performed the
demonstration.
03 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.
04 As noted at the outset, the complainant was already receiving
these accommodations prior to the events in question.
05 If the complainant opts for reinstatement, she will presumably
be required to be certified in CPR. If the complainant is still unable
and/or unwilling to perform the demonstration, the agency shall afford
her the same treatment afforded other nurses who are unable to become
certified.