01982551new
02-17-2000
Stephanie B. Cass, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Stephanie B. Cass, )
Complainant, )
)
) Appeal No. 01982551
) Agency No. 9402109 et al.
Togo D. West, Jr., ) Hearing No. 140-95-8076V et al.
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
Complainant timely filed an appeal from the Department of Veterans
Affairs' (hereinafter referred to as the agency) final decision on her
EEO complaints.<1> The appeal is accepted by the Commission in accordance
with the provisions of EEOC Order No. 960.001.
The issues presented are whether complainant proved, by a preponderance
of the evidence, that she was discriminated against on the bases of sex
and disability when she was subjected to harassment and intimidation from
May 25, 1994-July 28, 1994; and, whether she was discriminated against
on the bases of disability and reprisal when: a) she was denied the use
of an agency wheelchair as a reasonable accommodation, b) she did not
receive a suitable permanent job offer upon her return to duty, and c)
the agency proposed her removal in December 1994.
Complainant worked as an Operating Room staff nurse at the agency's
Medical Center (VAMC) in North Carolina. In 1990, complainant fell
while on duty and sustained a sciatic nerve injury. Complainant did not
return to duty until June 1994 after the Office of Workers' Compensation
Programs (OWCP) determined that her "disability" had ceased. Contrary to
OWCP's findings, complainant's physician indicated that complainant
could perform only sedentary to light physical work for 8 hours a
day. Complainant's capabilities/restrictions were described as follows:
lifting 5 lbs. frequently and 15 lbs. occasionally; can tolerate walking
under 30 feet without difficulty; standing up to 30 minutes before
resting; sitting a little under 2 hours; no ladder climbing, squatting,
kneeling, or crawling. Complainant walked with a cane for balance but
did not have a wheelchair for her personal use.
Because of the conflicting medical information, the agency convened a
Physical Standards Board (PSB) and ordered a fitness-for-duty examination.
In the meantime, complainant was given a light duty assignment.
Complainant's assignment initially consisted of a nursing refresher
course; after completion of the course, she was assigned to update the
nursing procedures manuals. Complainant reported to the VAMC; drove
to classes off-site; and then returned to the VAMC. Complainant was
permitted to park in front of the facility in the spaces for disabled
visitors and patients so that she would be close to the building entrance
and in proximity to the agency's wheelchairs; she was permitted to use
the agency's wheelchairs while she was at work; and her work hours were
changed to accommodate her physical therapy schedule.
In December 1994, the PSB found that complainant was not physically
capable of performing the duties of a staff nurse but that she was
employable and could perform job duties within the limitations described
by her physician. In conjunction with complainant's application
for disability retirement, a search for vacant positions for which
complainant was qualified and which were within her physical restrictions
was conducted facility-wide, but was unsuccessful. The agency proposed
to remove complainant for medical inability to perform the duties of
her position. The proposed termination was canceled when, on March 6,
1995, complainant's request for disability retirement was granted.
Complainant filed two EEO complaints. Complainant alleged harassment based
on remarks allegedly made by the Nursing Education Service Assistant
Chief, e.g., how complainant got to work was not the Assistant Chief's
problem; her initial assignment to an "isolated room" with no telephone,
trash can, clock, or desk;<2> and heightened scrutiny regarding her
activities. She also alleged discrimination based on the following:
the agency's failure to make a wheelchair available for her use at her
vehicle and/or immediately inside the building door;<3> the agency's
failure to assign her a permanent position upon her return to duty; and,
the agency's proposed removal notice.
The agency complied with all procedural and regulatory prerequisites.
Thereafter, an EEOC AJ issued a recommended decision (RD) finding
disability discrimination. The AJ found that complainant was an
individual with a disability under the regulations. The AJ found that
the agency had an obligation to "at least attempt a formalized system"
to provide a wheelchair for complainant's use and that its failure to
do so constituted intentional discrimination. The AJ further found
that the issuance of the notice of proposed removal was discriminatory
because the agency's search for a vacant position to which complainant
could be reassigned was deficient. The AJ found no discrimination as
to the remaining issues and bases. As a remedy, the AJ ordered the
agency to determine whether a vacant position existed--from June 1994
to the present--to which complainant could be reassigned and, if so, to
offer her the position and award back pay from the time she should have
been reassigned through the period when she either accepted or rejected
the position. The AJ also ordered the agency to pay proven compensatory
damages and to provide training to agency personnel regarding the agency's
obligations under the Rehabilitation Act.
Thereafter, the agency issued a FAD (FAD 1) modifying the AJ's
findings of discrimination and recommended remedies. The agency
found that the AJ erroneously applied a disparate treatment analysis
rather than a reasonable accommodation analysis to the wheelchair and
removal issues. Applying a reasonable accommodation analysis, the
agency found no discrimination as to the wheelchair issue, but found
discrimination as to the reassignment issue. Specifically, with respect
to the wheelchair issue, the agency found that there was no obligation
to provide complainant with a wheelchair because the evidence failed to
show that it was necessary in the performance of her job. With respect the
issue of reasonable accommodation, the agency found that complainant was
unable to perform the essential functions of the OR staff nurse position
with or without reasonable accommodation. The agency found, however,
that complainant should have been offered reassignment to a GS-5 Program
Assistant position. The agency modified the AJ's corrective remedies by
limiting the search for a vacant position to the time of the proposed
removal and offering complainant the GS-5 Program Assistant position.
The agency rejected training for personnel, and also rejected any
compensatory damages award because there was no finding of intentional
discrimination.
In FAD 1, the agency notified complainant that the decision would not
become final until it also had issued a decision on her attorney's fees
request. The agency subsequently issued a decision (FAD 2), which awarded
attorney's fees and gave complainant appeal rights to this Commission.
Complainant then timely filed this appeal.<4>
On appeal, complainant asserts that the evidence supports a finding
that: she was subjected to a hostile work environment because of her
disability; the agency failed to reasonably accommodate her by making a
wheelchair available and by failing to consider reassignment to another
position; and, the agency retaliated against her for filing her first
EEO complaint by refusing to conduct a search for vacancies and proposing
her termination.
In response, the agency contends that: the AJ correctly found that
complainant was not subjected to a hostile work environment; there was
no legal obligation to provide complainant with a wheelchair, although
it did so as a �humane gesture�; the analysis of vacancies in the FAD
was correct and offered the appropriate remedial relief; and, an award
of compensatory damages is not justified in this case.
The AJ's RD and the agency's FAD 1 diverged on several points. With
respect to the merits of the case, we agree with the agency's position
that the provision of a wheelchair and the matter of complainant's
proposed termination for medical inability to perform her job are
correctly determined under a reasonable accommodation analysis rather
than a disparate treatment analysis. We also agree that under the facts
of this case, the agency had no legal obligation to provide complainant
with a wheelchair.
Reasonable accommodation applies to modifications that specifically
assist a person in performing the duties of a particular job. See A
Technical Assistance Manual on the Employment Provisions (Title I)
of the Americans with Disabilities Act, III-5 (hereinafter Technical
Assistance Manual). In general, an agency is not expected to provide
an employee with equipment of a personal nature. Technical Assistance
Manual, III-5; see also 29 C.F.R. Part 1630 app. �1630.2(o).<5> The
Commission has provided guidance to Federal employers on this matter
in EMPLOYMENT OF PEOPLE WITH DISABILITIES IN THE FEDERAL GOVERNMENT,
A Guide for Managers and Supervisors:
Equipment cannot be of a personal nature such as eye glasses or
wheelchairs but must be directly related to the performance of the job.
Exceptions to this rule must be made on a case-by-case basis. An example
is when someone does not normally use a wheelchair but might require it
to travel long distances for the job.
Id. at 17.<6>
The agency found no evidence to show that complainant needed a wheelchair
to perform her light duty assignment. That is, there was no evidence
establishing that complainant was required to routinely move from place
to place in the performance of her job duties.<7> Complainant primarily
appeared to use the wheelchair to go back and forth between her vehicle
and her work site and to the cafeteria. Further, complainant did not
point to anything else in the employer's work environment that created
a barrier necessitating the use of a wheelchair. The Commission agrees
with the agency's conclusion that there was no legal obligation to
provide complainant with a wheelchair for her use.
With respect to the matter of relief, we agree with the agency's
determination that the search for vacant positions should be limited
to the time of complainant's proposed removal. To extend the search to
the present would give complainant more than she is due. We also agree
with the agency's determination that an award of compensatory damages
is not appropriate in a case in which there has been no finding of
intentional discrimination. Further, we find that the agency made a good
faith effort to reasonably accommodate complainant and that complainant
therefore is not entitled to compensatory damages pursuant to �102 of
the 1991 Civil Rights Act. We disagree, however, with the agency's
position that training for agency personnel is unnecessary in this case.
As provided in the Order below, the agency must provide training for
its Human Resources personnel regarding the agency's obligations under
the Rehabilitation Act, particularly with respect to reassignment as a
reasonable accommodation.
After a careful review of the record, the Commission finds that the
agency's FAD accurately summarized the relevant facts and correctly
applied the appropriate regulations, policies, and laws. We concur with
the finding of disability discrimination based on a failure to reasonably
accommodate complainant's disability by offering her reassignment to
the GS-5 Program Assistant (Medical Services) position and with the
findings of no discrimination regarding the remaining issues and bases
in this case. Accordingly, after careful review of the entire record,
including arguments and evidence not specifically addressed herein,
it is the decision of the Commission to AFFIRM the agency's FAD as
MODIFIED herein. The complaint hereby is REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1) Within thirty (30) calendar days of the date this decision becomes
final, the agency--if it has not already done so--shall offer complainant
the position of GS-5 Program Assistant (Medical Services) retroactive to
the effective date of complainant's disability retirement. Complainant
shall have thirty (30) calendar days in which to accept or reject the
agency's offer.
2) Regardless of whether complainant accepts or rejects the GS-5 Program
Assistant position, the agency shall determine the appropriate amount of
back pay with interest and other benefits due complainant, pursuant to 29
C.F.R. �1614.501, less any appropriate offsets, no later than sixty (60)
calendar days after the date this decision becomes final. The time period
for purposes of back pay shall be from the effective date of complainant's
disability retirement until the last day of the 30-day period during
which she can accept or reject the agency's offer. 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 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 a copy of the letter offering
complainant the GS-5 Program Assistant position as well as supporting
documentation of the agency's calculation of back pay and other benefits
due complainant.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Medical Center in Asheville, North
Carolina 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.
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).
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
Feb 17, 2000
_ ______________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
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 Medical Center, Asheville,
North Carolina (the facility) supports and will comply with such
Federal law and will not take action against individuals because
they have exercised their rights under law.
The facility was found to have discriminated against the complainant
when it failed to reassign her to a GS-5 Program Assistant (Medical
Services) position as a reasonable accommodation of her disability. The
facility was ordered to offer the above position to complainant;
to issue complainant a check for the appropriate amount of back pay
and interest; to reimburse complainant for any attorney's fees; and,
to provide training to its Human Resources personnel.
The facility 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: ________________
1On 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.
2Complainant initially was assigned to the Conference Room because of
its proximity to restroom facilities. When complainant expressed her
dissatisfaction, she was moved to a different location.
3Hearing testimony established that employees, visitors, and patients
would procure any wheelchair not currently in use, e.g., a wheelchair
left in the parking lot or near the entrance.
4Both FAD 1 and 2 appear in the case file. In the appeal brief, however,
complainant's attorney presents no argument or evidence regarding
the award of attorney's fees, i.e., she challenges only the merits
determinations made by the agency and the AJ.
5The 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.
6The example contemplates the provision of a wheelchair for someone
who normally does not use one if the job requires the individual to
travel extra long distances, e.g., walking for 8 hours or traveling in
a facility consisting of many square miles. In other words, distances
far greater than those an individual might encounter on a daily basis,
e.g., going grocery shopping.
7Given complainant's 30-foot walking limitation, it is conceivable that
she actually needed a wheelchair for her personal use but was able to
avoid using one through the assistance of others. Under such a scenario,
the wheelchair would be a personal use item because the barriers that
complainant faced were not just work-related.