01A20080
05-15-2003
Carol R. Smith, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Carol R. Smith v. Department of Veterans Affairs
01A20080
05-15-03
.
Carol R. Smith,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20080
Agency No. 2003-1165
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission affirms the agency's final decision.
ISSUE
Whether the agency discriminated against complainant because of her
disability (Post Traumatic Stress Disorder � PTSD) when on June 19,
2000, she was not selected to the position of Physician's Assistant at
the agency's Albuquerque, New Mexico Department of Veterans' Affairs
Health Care System (NMVAHCS) facility.
BACKGROUND
On approximately January 19, 1995, complainant was diagnosed with PTSD
resulting from a pattern of physically and emotionally abusive behavior
imposed by her former husband. Complainant had classic symptoms
of fear of being alone or of going where she might be in danger.
Complainant had nightmares and flashbacks about the physical abuse,
was fearful of anyone or anything that reminded her of these instances,
had problems with concentration and attention and her functioning was
�seriously below previous levels.� Despite these symptoms, complainant
was expected to make a full recovery. ROI C-6 at 41. In October
or November, 1995, complainant received her last treatment for PTSD.
She no longer needed medications for the PTSD, but would always feel
a heightened need for physical safety. ROI B-1 at 6. At the time of
investigation of this complaint, complainant continued to feel a need
for increased personal safety, had difficulty sleeping �at times,� and
continued to have nightmares. ROI B-1 at 4.
On March 10, 2000, complainant, who was employed at NMVAHCS at the time
of her 1995 diagnosis, applied for re-employment as a Physician's
Assistant back at NMVAHCS. The agency established a six person
interview committee chaired by complainant's former second line supervisor
(Dr. W). On April 6, 2000, complainant was interviewed for the position.
Complainant asserted that, at the start of the interview, Dr. W stated
that he was surprised that complainant wanted to return to New Mexico,
and asked if complainant was concerned for her personal safety. On June
19, 2000, Dr. W responded to complainant's electronic mail inquiry about
the position by stating that her previous departure from the staff was a
turbulent and painful time for complainant, and uncomfortable for other
staff members. Dr. W asserted that while complainant was well qualified
for the position, others were better qualified. Complainant sought EEO
counseling and subsequently filed a formal complaint on August 19, 2000,
regarding her non-selection.
In her February 2001 statement, complainant asserted that she was the
victim of a pattern of harassment by Dr. W, beginning with her involuntary
transfer from Primary Care to Urgent Care in 1995. Complainant asserted
that on October 17, 1995, Dr. W unfairly criticized her use of leave.
Without identifying a specific date or providing any details, Complainant
also asserted that she was not selected for a similar position. When
asked if Dr. W's bias was rooted in animus toward complainant's disability
or related to her 1995 divorce proceedings, complainant responded that she
did not know. In his unsigned statement given in February, 2001, Dr. W
did not recall expressing surprise at complainant's decision to return to
NMVAHCS and did not address complainant's assertion that he asked about
complainant's personal safety. Dr. W went on to state that although
he may have been aware of complainant's PTSD diagnosis in 1995, he had
forgotten about it by 2000. Dr. W asserted that his recommendations
for filling the position were based on the candidates' qualifications.
A note written by one of the interviewers during complainant's interview
stated that numerous previous co-workers recommended that complainant
not be rehired.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision, and asserted that
although the interview and recommending committee members denied knowledge
of complainant's PTSD, two of those committee members knew of her PTSD
diagnosis.
In its FAD, the agency concluded that complainant was not an individual
with a disability, nor did the agency regard her as an individual with
a disability. The agency concluded that none of the interview and
recommending committee members, nor the selecting official had knowledge
of complainant's disability. The FAD concluded that the agency did not
discriminate against complainant because of her disability.
On appeal, complainant contended that she was disabled, and that
when Dr. W worked with complainant in 1995, he should have recognized
complainant's symptoms of PTSD. Complainant also asked the Commission
to investigate various agency actions not alleged in her complaint.<1>
The agency requested that we affirm its FAD.
ANALYSIS
One bringing a claim of discrimination on the basis of disability must
show that she is an individual with a disability. Under 29 C.F.R. �
1630.2(g) an individual with a disability is defined as one who (1) has
a physical or mental impairment that substantially limits one or more
major life activities, (2) has a record of such an impairment or (3)
is regarded as having such an impairment. The determination of whether
an individual has a disability is not necessarily based on the name
or diagnosis of the impairment that the person has, but rather on the
effect of that impairment on the major life activities of the individual.
29 C.F.R. Pt. 1630, App.
While there is no exhaustive list of major life activities, for some
people, mental impairments restrict major life activities such as
learning, thinking, concentrating, interacting with others, caring for
onself, speaking, performing manual tasks, or working. 29 C.F.R. �
1630.2(i); Equal Employment Opportunity Commission (EEOC) Guidance on
Psychiatric Disabilities and the Americans with Disabilities Act, EEOC
Notice 915.002 (Mar. 25, 1997).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly restricts
the condition, manner or duration under which an individual can perform
a major life activity. 29 C.F.R. � 1630.2(j).
Here, we cannot conclude that complainant met the definition of a
disability. While complainant clearly had an impairment and a record of
an impairment, no evidence showed that she was significantly restricted
in the condition, manner or duration under which she performed a major
life activity. Complainant's evidence did not show that she had an
impairment that substantially limited a major life activity, or that
she was regarded as such. Similarly, complainant failed to show that
Dr. W, who asserted that, at the time he made the decision to fill the
position, he did not recall that complainant had PTSD, regarded her as
an individual with a disability.
Finally, regarding complainant's request that the Commission investigate
other allegations of discrimination and/or amend her appeal to include
allegations of discrimination not set out in her formal complaint,
complainant cannot raise these matters now at the appeal stage of case
processing. Federal sector case processing requires the federal employee
or applicant to contact an equal employment opportunity (EEO) counselor
at the agency where the alleged discrimination occurred within 45 days
of the personnel action or conduct causing the individual to believe
s/he was discriminated against. 29 C.F.R. � 1614.105. Additionally,
while complaints can be amended, this must occur before the close
of the investigation or before an administrative judge. 29 C.F.R. �
1614.106(d).<2>
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we affirm the FAD.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__05-15-03________________
Date
1 In her September 21, 2001 Appellant
Docketing Statement, complainant asked that the Commission investigate,
among other things, agency violations of disability regulations, evidence
of defamation, invasion of privacy, blacklisting, possible abuse of power
and personal conduct discrimination. In her October 28, 2002 letter
to the Commission's Office of Federal Operations (OFO), complainant
asked that disability discrimination regarding an on-the-job injury
and retaliatory use of a U.S. Department of Labor Office of Workers'
Compensation Programs claim be �considered as compensable issues attached
to the original [c]omplaint and subsequent [appeal].� Complainant also
submitted documents to OFO on February 23, 2003, March 14, 2003, and
March 25, 2003. These last three documents were submitted beyond the
30-days after the notice of appeal was filed, and were not considered
in this decision. 29 C.F.R. � 1614.402(d).
2 Complainant is advised that if she wishes to pursue, through the
EEO process, the additional allegations of discrimination that she
raised for the first time on appeal, she shall initiate contact with
an EEO counselor within 15 days after the date that she receives this
decision. The Commission advises the agency that if complainant seeks EEO
counseling regarding the new allegations within the above 15-day time
period, the date complainant filed the appeal statement in which she
raised these allegations with the agency shall be deemed to be the date
of the initial EEO contact, unless she previously contacted a counselor
regarding these matters, in which case the earlier date would serve as
the EEO counselor contact date. Cf. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).