Gailmary McDonald, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 30, 2004
01a32765 (E.E.O.C. Sep. 30, 2004)

01a32765

09-30-2004

Gailmary McDonald, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Gailmary McDonald v. Department of Veterans Affairs

01A32765

September 30, 2004

.

Gailmary McDonald,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A32765

Agency No. 200P-0785-2002103245

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

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 PRESENTED

The issue presented herein is whether complainant has proven that

she was an individual with a disability within the meaning of the

Rehabilitation Act.

BACKGROUND

The record reveals that at one point during her tenure with the agency,

complainant was employed as a Management Trainee in the agency's Canteen

Officer Training program located in San Diego, California. According to

complainant, she was sent to Milwaukee, Wisconsin, for training and

quickly discovered that the supervisor there did not like her, which

ultimately caused her to flunk out of the training program.

In September 1999, complainant was directed to return to the Sepulveda

VA Medical Center in Sepulveda, California, where she served as a Food

Service Worker. Complainant alleges that she was subjected to hostility

and harassment by her supervisor, which caused her to have a mental

breakdown on September 9, 1999. On September 17, 1999, complainant

stopped showing up for work. In a letter dated September 30, 1999, the

agency requested that complainant provide detailed medical documentation

relative to her current medical condition to support her lengthy absence.

Complainant provided the requested medical documentation in a memorandum

dated October 8, 1999. Attached to the memorandum were notes from

complainant's doctor, which gave information about complainant's current

medical condition. The agency determined that the information provided

in the doctor's notes was insufficient, and therefore requested medical

documentation an additional time in a letter dated October 18, 1999.

In response, the doctor provided the agency with essentially the same

information that was attached to complainant's October 8, 1999 memorandum.

This time, however, the doctor suggested to the agency that complainant

could be accommodated by being reinstated into the Canteen Officer

Training program in San Diego, California, or transferred out of food

service and into retail, where she had experience and would not have to

deal with a hostile supervisor who used to be a subordinate.

In a letter dated September 28, 2000, the agency ordered complainant

to return to work. Because the letter was sent to the wrong address,

complainant did not receive it until February 4, 2001. In letters dated

January 19, 2001 and March 18, 2002, the agency notified complainant of a

proposed removal action. Complainant received the letters on February 4,

2001, and March 28, 2002, respectively. Finally, in a letter dated April

10, 2002, received by complainant on April 18, 2002, complainant was

notified that she had been removed from the agency, effective April 22,

2002. In the letter, complainant was charged with being absent without

official leave for the period of September 17, 1999, to March 18, 2002.

At the request of her psychiatrist, complainant filed for disability

retirement June 21, 2002.

Complainant sought EEO counseling and subsequently filed a formal

complaint on July 17, 2002, in which she alleged the agency discriminated

against her on the basis of disability (depression) when she was denied

a reasonable accommodation and subjected to a hostile work environment.

The reasonable accommodation claim was based upon the agency's failure

to follow the advice of complainant's psychiatrist to take action (i.e.,

reinstate complainant into the canteen manager training program and

allow her to complete the training she began in San Diego, California,

or transfer her out of food service and into retail where she would

not be under the supervision of a hostile, former subordinate) in

order to allow complainant to continue her employment with the agency.

The hostile work environment claim was based upon management's request

for a comprehensive medical report on October 19, 1999; her receipt

of a memorandum ordering her to return to work on February 4, 2001;

her receipt of a notification of proposed removal on February 4, 2001,

and March 28, 2002; management's decision to remove her from employment,

effective April 22, 2002; and management's failure to process her medical

retirement application.

The complaint was accepted for investigation, and at the conclusion

thereof, 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 a final agency decision.

In its decision, the agency concluded that complainant had not been

discriminated against as alleged. Specifically, the agency concluded

that complainant was not an individual with a disability entitled to

coverage under the Rehabilitation Act. Complainant appealed. On appeal,

complainant challenges the sufficiency of the investigation.

ANALYSIS AND FINDINGS

Insufficient Investigation

On appeal, complainant argues that the agency conducted an insufficient

investigation by taking statements from biased individuals and not

interviewing some of her witnesses. Upon review of the investigation,

it is the conclusion of this Commission that the agency's investigation

was conducted in an unbiased manner, and that all relevant witnesses

were interviewed. Based on the foregoing, it is the ruling of this

Commission the agency's investigation was conducted in accordance with

the applicable EEOC regulations and guidelines.

Disability Discrimination

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations of

an otherwise qualified individual with a disability unless the agency can

show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.

The Commission also notes that an employee must show a nexus between

the disabling condition and the requested accommodation. See Wiggins

v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).

As a threshold matter in a case of disability discrimination under a

failure to accommodate theory, the complainant must demonstrate that

s/he is an "individual with a disability." EEOC Regulation 29 C.F.R. �

1630.2(g) defines an individual with a disability as one who: 1) has a

physical or mental impairment that substantially limits one or more of

that person's major life activities, 2) has a record of such impairment,

or 3) is regarded as having such an impairment. EEOC Regulation 29

C.F.R. � 1630.2(h)(2)(i) defines "major life activities" as including

the functions of caring for one's self, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working.

Although this is an illustrative, not exhaustive, list, there is no

evidence in the record that complainant was substantially limited in a

major life activity due to a physical or mental impairment. From the

medical information in the file, complainant's impairment affected

her ability to sleep, concentrate, and work. Complainant's affidavit

indicated that she suffered from severe mood swings and anxiety

attacks. While sleeping and concentrating are major life activities,

there is no evidence in the record indicating how or to what degree

complainant's impairment affected her ability to engage in those major

life activities.<1> Thus, we cannot determine whether complainant was

substantially limited in these regards. Similarly, complainant presented

no evidence, testimonial or documentary, indicating how her mood swings

and anxiety attacks substantially limited her in any way. Therefore,

we are unable to ascertain whether these particular symptoms affected

a major life activity.

Like sleeping and concentrating, working is also a major life activity.

An individual is substantially limited in this major life activity if

he or she is significantly limited in the ability to perform either a

class of jobs or a broad range of jobs in various classes as compared to

the average person having comparable training, skills, and abilities.

See 29 C.F.R. � 1630.2(j)(3)(i). After reviewing statements from

complainant and her doctor, it appears complainant was unable to work

at the canteen in Sepulveda, California, because she could not get along

with her supervisor, a former subordinate. Nowhere in the file is there

an indication that complainant was unable to work in any other job for

which she was qualified. The inability to perform a single, particular

job, as is the case with complainant, does not constitute a substantial

limitation in the major life of working. Id.

Moreover, complainant has not presented evidence that she had a history

of or was regarded by the agency as having such an impairment. We feel

compelled to note there is no indication that complainant was denied the

opportunity to present evidence proving that she is an individual with

a disability within the meaning of the Rehabilitation Act. Therefore,

we find that complainant has failed to make out a successful disability

claim with regard to the denial of reasonable accommodation, alleged

disparate treatment, and the hostile work environment.

CONCLUSION

After a careful review of the record, including complainant's contentions

on appeal, the agency's response thereto, and arguments and evidence not

specifically addressed in this decision, we affirm the agency's finding

of no discrimination.

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:

______________________________

Stephen Llewellyn

Acting Executive Officer

Executive Secretariat

September 30, 2004

__________________

Date

1Notwithstanding the fact that complainant had some problems

concentrating, her medical information states she was �alert [and]

oriented,� and her �[m]emory, attention span, [and] language skills [were]

intact.� This information also states complainant's �thought processes

[were] logical.�