01A21438_r
03-05-2003
Mildred B. Schlote, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mildred B. Schlote v. Department of Veterans Affairs
01A21438
March 5, 2003
.
Mildred B. Schlote,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A21438
Agency No. 200M-02-100406
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated December 26, 2001, dismissing her complaint
of unlawful employment discrimination in violation of the Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. 791 et seq.
The record reveals that complainant was a Staff Nurse at the agency's
Medical Center in Denver, Colorado. On December 31, 1994, complainant
sustained a work-related traumatic injury. On September 6, 1996,
complainant was separated from her employment due to a knee disability.
Complainant was determined not to be physically capable of performing the
duties of the position of Staff Nurse, VN-610, to which she was assigned.
The determination was made by a Nurse Physical Standards Board at
the agency's Medical Center in Denver, Colorado. Complainant has been
receiving Office of Workers' Compensation Programs (OWCP) benefits since
this time.
On July 2, 2001, complainant received a letter from Human Resources
informing her that they had received notification from the Department of
Labor (DOL) that she was capable of performing certain work assignments.
Human Resources conducted a search to determine if a position would
be available that would meet the restrictions imposed by a DOL work
capacity evaluation dated in December 2000. Human Resources identified
the position of Staff Nurse-Milieu Monitor, Nursing Service, they felt
met those restrictions. Human Resources offered complainant a permanent
position as Staff Nurse, Grade II, Step 9, Salary $55,800 per annum.
According to Human Resources, the position would remain open until the
job suitability was determined by OWCP. On July 8, 2001, complainant
responded to Human Resources' letter dated July 2, 2001, stating that the
position of Staff Nurse-Milieu Monitor was not an appropriate position
for her because she could not do the job, her training expertise was not
in the psychiatric nursing area and therefore, she was not qualified.
Additionally, complainant listed what were her physical limitations in
relation to the job.
Thereafter, complainant received an October 2001 letter from OWCP,
informing her that the light duty position offered to her in July 2001,
by the agency's Medical Center in Denver, Colorado, was consistent with
the physical limitations imposed by her injury. The OWCP found the
position to be suitable to complainant's limitations as described by her
treating physician. Complainant was given 30 days either to accept the
position or to provide an explanation of the reasons for refusing it.
She was granted an additional 15 days to accept the position without
penalty. In November 2001, OWCP informed complainant that the evidence
established a conflict in the medical opinion; therefore, OWCP stated,
she will continue to receive her compensation until an impartial medical
specialist settles the conflict.
Complainant sought EEO counseling and subsequently filed a formal
complaint dated December 4, 2001. Complainant alleged that she was
discriminated on the basis of her disability (left knee injury) when
the agency failed to provide her with a reasonable accommodation.
Complainant believes this situation occurred because management wanted
her to return to work to save money. Complainant argues that the agency
knew that she was unable to return to work. Complainant argues that it
would be detrimental to her health and safety to be placed in a position
where she has to work with mentally ill patients.
In its decision, dated December 26, 2001, the agency dismissed the
claim pursuant to 29 C.F.R. �1614.107(a)(5), finding that complainant
had alleged a proposed personnel action. The agency stated that the
light duty position offered by the Medical Center in Denver, Colorado,
was in the proposal stage and that the agency agreed to continue to pay
compensation to the complainant until the conflict was settled by an
impartial medical specialist. The Commission agrees with the agency.
Complainant has not claimed that her compensation has been terminated.
The record indicates that the matter is still a proposed personnel action.
Complainant may file a new complaint if and when any actual personnel
action is taken. The Commission notes that the instant matter does
not involve the situation where complainant has been placed back
in a position with the agency and is alleging that she has not been
reasonably accommodated. Therefore, we find that the complaint was
properly dismissed pursuant to � 1614.107(a)(5).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 5, 2003
__________________
Date