01970314
11-19-1998
Brenda D. Martell, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Brenda D. Martell v. Department of the Navy
01970314
November 19, 1998
Brenda D. Martell, )
Appellant, )
)
v. ) Appeal No. 01970314
) Agency No. DON-95-00173-002
John H. Dalton, ) EEOC No. 100-95-7836X
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against her in violation of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001.
Appellant, formerly a GS-5 Library Technician at the agency's Naval
Research Laboratory, filed a formal EEO complaint alleging discrimination
on the basis of disability (right leg) when the agency forced her
to resign in lieu of being removed during a probationary period.
Following the agency's investigation, appellant requested a hearing
before an EEOC administrative judge (AJ). Finding there were no material
issues in dispute, the AJ issued a Recommended Decision pursuant to 29
C.F.R. �1614.109(e) on July 18, 1996, finding no discrimination.
In his RD, the AJ found that on August 9, 1994, a library cart fell
against appellant's legs. That day, appellant sought and received medical
treatment at the agency's infirmary. The nurse made the following
notations in the injury report: "[N]o obvious swelling abrasion,
laceration or deformity noted on both knees...[M]ore pain in [right]
knee [especially] below patella on both medial [and] lateral respects
of leg." On August 10, 1994, appellant received a sick slip which
advised her to stay off her feet for three days and restricted her to
"no running, walking long distances, no stair climbing for three days,
then gradual return to full activity as tolerated." Various medical
documentation submitted by appellant indicates she repeatedly sought
and received medical treatment for her injury over the next month and
a half. She was advised to elevate her leg, reduce her walking/weight
bearing for short periods of time, and was placed on crutches for two to
three weeks. On October 11, 1994, appellant's doctor advised her that she
could return to work, but should not engage in "heavy lifting, running,
excessive walking, bending, or excessive stair climbing for one month.
Stationary." The AJ noted that between August 9, 1994, and October 11,
1994, appellant reported to work approximately ten days.
On October 12, 1994, appellant returned to work at the agency on light
duty. Specifically, her duties included alphabetizing and shelving
unbound periodicals, organizing microfilm, and working at the front desk.
On October 17, 1994, appellant's acting supervisor met with an individual
from the Human Resources Office to discuss appellant's work performance.
During that meeting appellant's acting supervisor learned that appellant
was a probationary employee until October 31, 1994. Appellant's acting
supervisor recommended that she be discharged. Appellant's notice
of discharge was issued on October 24, 1994, and appellant resigned
effective October 28, 1994.
As reasons for her discharge, the agency cited appellant's continuing
conduct and performance problems. Specifically, her use of the telephone
for personal reasons, stating to staff that she did not intend to perform
tasks assigned, and disappearing for periods during the day.
The AJ found that appellant's knee condition and restrictions continued to
improve over the roughly three month period she was out of work. The AJ
found that despite appellant's allegations that she was substantially
limited in her ability to "walk, perform manual tasks and to work,"
she was unable to produce any evidence indicating that the injury
substantially limited a major life activity. Furthermore, the AJ
found that the agency's knowledge that appellant was on light duty did
not indicate that it regarded her as being disabled. Finding that the
agency did not regard her as substantially restricted from performing a
class of jobs or a broad range of jobs in various classes, the AJ found
that appellant did not meet the threshold definition of a person with
a disability. In closing, the AJ also found that appellant was not
discriminated against on the basis of disability.
After a careful review of the record in its entirety, the Commission
find that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
The Commission has reviewed the parties' statements on appeal and discerns
no basis in which to disturb the AJ's finding of no discrimination.
For instance, appellant argues on appeal that she is indeed substantially
limited in the area of walking and submits a doctor's report which
indicates that her pain still persists. Appellant further reports that,
"her condition significantly restricts her from performing such major
life activities such as walking and working." Specifically, she stated
that due to her injury, she "has had difficulty walking or standing for
prolonged periods of time and she cannot perform any task that requires
bending or stooping." We find appellant's statements on appeal and the
doctor's report insufficient evidence to show how her injury substantially
limits a major life activity. With respect to the major life activity of
working, appellant has failed to submit any documentation detailing her
current work restrictions, if any, or any other evidence indicating how
her injury has restricted the major life activity of working. In turn,
the agency has submitted evidence indicating appellant's work history
since she stopped working for the agency. An individual is substantially
limited in working if the evidence shows that the impairment significantly
restricts the individual's ability to perform a class of jobs or a
broad range of jobs in various classes and that many employers have
or would exclude the individual from working in that class or a broad
range of jobs because of the impairment. Guillory v. Dep't of the Navy,
EEOC Appeal No. 01945298 (January 24, 1996). Appellant has not provided
evidence proving this. Therefore, in this case, we find that appellant's
transitory condition fails to rise to the level of a disability because
her condition did not substantially limit one or more of her major life
activities. See Schultz v. USPS, EEOC Request No. 05950724 (September
26, 1996). Because we find appellant is not a disabled person as
defined by the statute, we will not address her failure to accommodate
allegation. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov 19, 1998
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations