Lois Evey, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency,

Equal Employment Opportunity CommissionSep 18, 2000
01970918 (E.E.O.C. Sep. 18, 2000)

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.