05a00438
06-29-2000
Lawanda R. Fernelius, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lawanda R. Fernelius v. United States Postal Service
05A00438
June 29, 2000
Lawanda R. Fernelius, )
Complainant, ) Request No. 05A00438
) Appeal No. 01984221
) Agency No. 4E-890-1111-95
) Hearing No. 340-96-3983X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Lawanda
R. Fernelius v. United States Postal Service, EEOC Appeal No. 01984221
(January 21, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
The issue presented is whether the previous decision properly affirmed the
final agency decision (FAD). The FAD adopted the recommended findings and
conclusions issued by an EEOC Administrative Judge (AJ) without a hearing.
The AJ concluded that complainant had failed to establish discrimination
based on race (Caucasian), disability (situational anxiety), or reprisal
(prior EEO activity) when: (1) she was required to work overtime on
May 30, 1995 and ongoing; and (2) she was sent for a Fitness For Duty
(FFD) examination in August, 1995. In her request for reconsideration,
complainant argues that the AJ erroneously concluded that she was not an
"individual with a disability" within the meaning of the Rehabilitation
Act, notwithstanding that the agency physician who conducted her FFD
examination accepted the conclusion of her own health care provider that
she has been diagnosed with situational anxiety and "Post Traumatic Stress
Disorder, by history." Record of Investigation (ROI) Exhibit 3 at 1.
Complainant further argues that excessive absence could not have been a
factor on which management relied in sending her for an FFD examination
because she had a large balance of accrued annual and sick leave during
the relevant time.<2>
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).<3>
The AJ's recommended findings and conclusions incorrectly stated
that situational anxiety is "by definition a temporary condition."
The Commission recognizes that there may be cases wherein an individual's
situational anxiety is long-term, or where, although episodic, it is
sufficiently chronic to substantially limit complainant in a major life
activity. See, e.g., EEOC Enforcement Guidance on the Americans With
Disabilities Act and Psychiatric Disabilities, question 8 (March 25,
1997).<4> Nonetheless, the prior decision properly affirmed the FAD
because on the factual record in the instant case, complainant failed to
demonstrate that her mental impairment did in fact substantially limit
her in a major life activity, "such as learning, thinking, concentrating,
interacting with others, caring for oneself, speaking, performing manual
tasks, or working." EEOC Enforcement Guidance on the Americans With
Disabilities Act and Psychiatric Disabilities, question 3 (March 25,
1997); see also 29 C.F.R. � 1630.2(i).<5> For example, with respect to
concentration and thinking, the only evidence of relevant limitation is
the assertion by complainant's personal health care providers that she
is under stress, and the agency physician's observation that she was in a
"very defensive and agitated state of mind" during the FFD examination.
We further note that as part of the EEO investigation, complainant
completed a questionnaire dated July 2, 1996 in which she identified
"working overtime" as the major life activity substantially limited by her
mental impairment.<6> "Working overtime" is not a major life activity
under the applicable statutory and regulatory authority. However,
"working" is recognized as a major life activity, which is to be analyzed
if no other major life activity is substantially limited by an impairment.
In order to be substantially limited in the major life activity of
working, the Commission's regulations require that an individual be
restricted from performing either a broad class of jobs or a broad range
of jobs in various classes. 29 C.F.R. � 1630.2(j)(3)(i). The inability
to perform a single, particular job does not constitute a substantial
limitation on the major life activity of working. See Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999).
Miller v. Department of the Navy, EEOC Petition No. 03A00066 (May 4,
2000). While from June through December, 1995, complainant took three
leaves of absence (one week, two weeks, and three months in duration,
respectively), the record is insufficient in this particular case
to establish that even during her leaves of absence complainant was
restricted from performing a broad class of jobs or a broad range of
jobs in various classes. Therefore, complainant did not demonstrate
that her mental impairment substantially limited her in the major life
activity of working.
Accordingly, the prior decision correctly affirmed the FAD's ultimate
conclusion that complainant is not an individual with a disability,
because complainant has failed to adduce sufficient evidence
establishing that her mental impairment substantially limited her in a
major life activity, or alternatively that she had a record of, or was
regarded as having, a substantially limiting mental impairment.
Accordingly, after a review of the complainant's request for
reconsideration, the previous decision, and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01984221 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
June 29, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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.
2Management's stated grounds for requesting the FFD examination were
excessive absenteeism, inability to perform job, and insufficient medical
documentation. See ROI Exhibit 2 at 2. The medical documentation
which complainant originally submitted was a handwritten note from her
physician, not on letterhead, which identified her condition as "stress."
ROI Exhibit 4 at 6.
3The 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.
4"An impairment is substantially limiting if it lasts for more than
several months and significantly restricts the performance of one or more
major life activities during that time. It is not substantially limiting
if it lasts for only a brief time or does not significantly restrict an
individual's ability to perform a major life activity . . . . In addition,
some conditions may be long-term, or potentially long-term, in that
their duration is indefinite and unknowable or is expected to be at least
several months. Such conditions, if severe, may constitute disabilities."
EEOC Enforcement Guidance on the Americans With Disabilities Act and
Psychiatric Disabilities, question 7 (March 25, 1997).
5Complainant did have various physical impairments for which she sought
accommodation as well, but those are not at issue here, inasmuch as she
contends that it was her request to be excused from overtime duty based
on her mental impairment which the agency failed to honor.
6The documentation submitted by her personal health care providers
advised that complainant could work up to forty hours per week, but as
an accommodation necessitated being relieved of overtime duties.