01995575
02-21-2002
Kathryn Kershner, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (National Park Service), Agency.
Kathryn Kershner v. Department of Interior (National Park Service)
01995575
February 21, 2002
.
Kathryn Kershner,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 01995575
Agency No. FNP98061
DECISION
Kathryn Kershner (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. and 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.
Complainant alleged that she was discriminated against:
(1) on the bases of disability (depression, disc/neck) and reprisal
(prior EEO activity) when her supervisor failed to accommodate her need
for daytime employment;
on the bases of race/color (white), national origin (white/Slovak)
and reprisal when her supervisor failed to act upon her recommendations
for discipline of students;
on the bases of sex (female) and reprisal when her supervisor denied
her requests for time off on the weekends;
on the bases of disability (depression) and reprisal when her supervisor
would not accept her doctor's excuse for her to be off work; and
on the basis of sex when her supervisor denied her annual leave.
The record reveals that during the relevant time, complainant was
employed as a Social Service Assistant in the agency's Harpers Ferry
Job Corp Center, National Park Service. Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on March 6, 1998. 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.
In its FAD, the agency first concluded that complainant failed to
establish that she was disabled within the meaning of the Rehabilitation
Act.<1> Specifically, the agency found that she did not establish that
her disability substantially limited a major life activity. Moreover,
the agency noted that even if complainant was disabled she was not a
�qualified individual with a disability,� as she failed to demonstrate
that an accommodation would permit her to perform the essential functions
of her position. The agency went on to note that even if complainant
was covered by the Rehabilitation Act, the agency accommodated her to
the extent to which it was able.
The agency also concluded that complainant failed to establish a prima
facie case on any cited bases with respect to her remaining claims.
In regard to her reprisal claim, the agency noted that complainant had
no prior protected activity and that, if she did previously engage in
protected activity, none of the relevant management officials were aware
of such activity. Finally, the agency noted that assuming complainant
did establish a prima facie case in regard to any of her claims,
it articulated legitimate non-discriminatory reasons for its behavior
that complainant failed to establish were a pretext for discrimination.
It is from this FAD that complainant now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant contends that she is disabled, as her depression
substantially limits the major life activity of sleeping. She cites to
numerous notes from her doctor in which he referred to her depression
and her sleeping problems and requested that she be transferred from the
midnight shift to an evening or day shift. Complainant notes that the
agency failed to ask her whether she was substantially limited, but that
the record nonetheless establishes that she is. Complainant also notes
that after she requested an accommodation, the agency refused to engage
in the interactive process, instead treating her requests with hostility.
Despite the agency's claim to the contrary, complainant contends that
there were vacant positions to which she could have been transferred.
Finally, complainant notes that once she began requesting accommodations,
her supervisors ceased supporting her in her job, refusing to take action
when she recommended disciplinary actions against students.
The agency makes no response to these contentions and simply requests
that we affirm its FAD.
FINDINGS AND ANALYSIS
Turning first to complainant's claim of disability discrimination, as
a threshold matter, complainant must establish that she is a �qualified
individual with disability� within the meaning of the Rehabilitation Act.
An "individual with a disability" is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
an impairment. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). A "qualified" individual with a disability is
one who satisfies the requirements for the employment position she holds
or desires and can perform the essential functions of that position
with or without reasonable accommodation. 29 C.F.R. � 1630.2(m).
The Supreme Court has held that the determination of whether a person is
an "individual with a disability" must be based on his or her condition
at the time of the alleged discrimination. The positive and negative
effects of mitigating measures used by the individual, such as medication
or an assistive device, must be considered when deciding if he or she
has an impairment that substantially limits a major life activity.
Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United
Parcel Service, Inc., 527 U.S. 516 (1999).
In the case at hand, complainant failed to establish that she is disabled.
Complainant argues on appeal that she is substantially limited in the
major life activity of sleeping due to her depression and the medication
she takes to treat it.<2> While complainant is correct that sleeping
is recognized by the Commission as a major life activity, she failed to
provide sufficient evidence to establish that she is substantially limited
in this activity. See EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities, No. 915.002 at Question 3
(March 25, 1997) (sleeping is a major life activity).
An individual is substantially limited if s/he is unable to perform
a major life activity, or if s/he is significantly restricted as to
the condition, manner or duration under which s/he can perform a
particular major life activity as compared to the average person.
See 29 C.F.R. 1630.2(j). An individual is not substantially
limited in sleeping if s/he has trouble getting to sleep or sometimes
sleeps fitfully. See EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities, supra at Question 11.
Here, complainant relies on several notes from her doctor which state
that she suffers from depression and has difficulty sleeping due to her
illness and, at times, her medication. While these notes establish that
complainant's impairment affects the major life activity of sleeping,
they do not establish that her ability to sleep is substantially limited.
See Thompson v. United States Postal Service, EEOC Appeal No. 01971189
(August 31, 2000) (an impairment that affects a major life activity does
not necessarily substantially limited that activity). There is nothing
in the record which describes the degree to which complainant's sleep
is affected or the frequency of her sleep problems. See EEOC Compliance
Manual Definition of Term �Disability,� No. 915-002, at 902-22 (March 14,
1995) ([complainant] should explain the extent to which the impairment
interferes with the major life activity, rather than merely state that it
interferes with the major life activity). Even on appeal, knowing that
the agency believed she was not substantially limited, complainant failed
to produce any additional details as to how her depression limited her
ability to sleep�the only information on this point in the record is that
complainant has difficulty sleeping. We find this evidence insufficient
to establish that complainant's ability to sleep is substantially limited.
Furthermore, there is no evidence that the agency regarded complainant
as disabled. Indeed, the essence of complainant's claim is that the
agency refused to accept that she had a disability and therefore did
not accommodate her.
Likewise, complainant failed to establish that she is covered by the
Rehabilitation Act due to a record of a substantially limiting impairment.
In School Bd. of Nassau County v. Arline, 480 U.S. 273, 281 (1987),
the Supreme Court determined that an individual's hospitalization for
an illness that substantially limited one or more of his major life
activities sufficed to establish a record of a substantially limiting
impairment. In the case at hand, certain doctor's notes provided to
the agency when complainant requested an accommodation indicate that
complainant spent some time in a hospital due to her depression almost
twenty years prior to the incidents in question. We note, however,
that the record is void of any details of this incident. There is
no description in the record concerning complainant's condition or
limitations during this hospital stay, nor is there any documentation
or testimony indicating that complainant was classified as being
substantially limited in one or more major life activities during this
hospitalization. Rather, the record contains only a vague reference
to a previous hospital stay. This does not suffice to establish that
complainant has a record of an impairment that substantially limits a
major life activity. See Ayers v. United States Postal Service, EEOC
Appeal No. 01975550 (February 25, 2000) (complainant failed to show that
he has a record of a disability where there is no evidence that he has
ever been classified�correctly or incorrectly�as having an impairment
that substantially limits one or more of his/her major life activities).
Accordingly, the agency's determination that complainant failed to
establish that she was subjected to disability discrimination was proper
and is AFFIRMED.
In regard to complainant's claims of disparate treatment due to her
race/color, national origin, sex, and reprisal and applying the
standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees with
the agency that complainant failed to establish that she was subjected
to discrimination.
Even assuming complainant established a prima facie case of discrimination
and retaliation in regard to her claims, she failed to establish that the
agency's explanations for its actions are a pretext for discrimination
or retaliation.<3> For example, although complainant claimed she was
subjected to discrimination when her suggestions for disciplinary action
against students were not followed, complainant's supervisor noted
that he does not discipline students every time they are reported for
bad behavior, instead he talks with them and determines when discipline
is necessary, as he did in the cases to which complainant referred.
In response to complainant's claim that her requests for leave on
weekends were denied, complainant's supervisor noted that because of
complaints received when male staff members monitored female dormitories,
he attempted to use only female staff members in female dormitories and,
as he had only two female staff members, he often was unable to grant
weekend leave requests. Complainant offered no evidence to indicate
that this explanation, or the others offered by the agency, are a pretext
for discrimination.
Therefore, 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.
As a final matter, we note that the record reveals that certain
management officials may not be aware of their responsibilities under
the Rehabilitation Act. The supervisor of the Youth Program told the
EEO counselor that it was not his responsibility to find complainant
another job. Another management official noted that complainant
could go to another job if she found one and that if she did not
like her present job, she should quit. These statements indicate
that management officials may not be aware that the duty to provide a
reasonable accommodation may include the duty to reassign a qualified
individual with a disability to a funded, vacant position for which they
are qualified. See Appendix to Part 1630 - Interpretive Guidance on Title
I of the Americans with Disabilities Act, 1630.2(o). While we have found
that complainant is not disabled and that the agency is thus not obliged
to offer her an accommodation, we advise the agency to ensure that its
management officials are aware of the agency's responsibilities under the
Rehabilitation Act, including the agency's responsibility to attempt to
reassign qualified individuals with disabilities, absent undue hardship,
if no other accommodation is effective. To assist in this effort, we
refer the agency to EEOC Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act (March 1, 1999).
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
February 21, 2002
Date
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
______________________________
1The 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.
2 While there are indications in the record that complainant's depression
caused other difficulties, such as problems relating to others, she
concentrates on her claim that she is substantially limited in the major
life activity of sleeping. A thorough review of the record reveals
no evidence that she is substantially limited in any other major life
activity. While the record contains a form letter from complainant's
doctor, dated February 26, 1998, which indicates that complainant was
�totally incapacitated� between February 26, 1998 and April 27, 1998,
this letter provides no details as to what impairment was incapacitating
complainant, nor does it explain what limitations she was experiencing.
Standing alone, this form letter is insufficient to establish that
complainant is or was substantially limited in any major life activities.
3 We note that, contrary to the agency's finding, complainant did engage
in protected EEO activity prior to the incidents described in Issues
2-5. As early as November 1995, complainant requested a reasonable
accommodation. Requesting a reasonable accommodation is protected
EEO activity. See EEOC Compliance Manual, Section 8, �Retaliation�
(May 20, 1998), at 8-6.