03A10078
03-22-2002
Darlene Martin, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Midwest Area), Agency.
Darlene Martin v. United States Postal Service
03A10078
March 22, 2002
.
Darlene Martin,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Midwest Area),
Agency.
Appeal No. 03A10078
Agency No. CH-0752-00-0841-I-1
DECISION
Darlene Martin (petitioner) filed a petition with the Equal Employment
Opportunity Commission (the Commission) for review of the Final Order
of the Merit Systems Protection Board (MSPB) concerning allegations
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The petition is governed by the provisions of the Civil Service Reform
Act of 1978 and EEOC Regulations, 29 C.F.R. �1614.303 et seq. The MSPB
found that the United States Postal Service (agency) had not engaged in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.<1>
The record indicates that on September 7, 2000, petitioner was removed
from her position as a EAS-13 Postmaster in Kempton, Indiana. The agency
stated that petitioner was removed from her position due to her failure to
account for and protect postal funds. Specifically, the agency alleged
that as the result of a financial audit, an agency investigation into
missing postal funds was initiated and the results of the audit disclosed
a shortage in petitioner's individual credit of $1,585.99. Petitioner
conceded that she was responsible for the shortage in her postal funds,
but stated that she did not engage in intentional wrongdoing. Petitioner
filed an appeal of her removal to the MSPB, asserting that she was treated
differently than other employees because of her disability (stress and
anxiety disorder). Without holding a hearing, an MSPB Administrative
Judge (AJ) issued an initial decision mitigating the agency's action.
The AJ initially found that the agency established by a preponderance
of the evidence that petitioner failed to account for and protect postal
funds. However, the AJ found that petitioner failed to establish that the
agency's action in terminating her constituted disability discrimination,
inasmuch as petitioner failed to present evidence that her condition
substantially limited any major life activities, including work.
The AJ then found that the agency did not consider the effectiveness of
a lesser sanction for petitioner's misconduct, and concluded that the
maximum reasonable penalty in this case was a demotion to the highest
non-supervisory craft position for which the petitioner is qualified.
Subsequently, the petitioner requested that the Commission review the
initial decision of the AJ.
The Commission must determine whether the decision of the Board with
respect to the allegations of discrimination based on disability
constitutes a correct interpretation of any applicable law, rule,
regulation or policy directive and is supported by the evidence in the
record as a whole. 29 C.F.R. � 1614.305(c).
As a threshold matter, 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 life of the individual.
Non-chronic impairments of short duration with little or no long term
or permanent impact are usually not disabilities.
Petitioner contended that she submitted medical documentation establishing
that she has a record of a medical condition which affected her ability
to perform the duties and responsibilities of her position. The MSPB
AJ considered the evidence of record, including an affidavit from a
friend<2> of petitioner stating that petitioner developed acute stress
due to the behavior of her child, which was a �significant factor� in
the circumstances leading to her removal from the agency. However,
the AJ found that petitioner's impairments were of a temporary nature
brought on by the erratic and criminal behavior of her child, and thus
concluded that petitioner failed to establish by preponderant evidence
that the agency's action constituted disability discrimination.
A review of the record fails to establish by a preponderance of the
evidence that petitioner was an individual with a disability within
the meaning of the regulations. The Commission first notes that while
petitioner asserted that her medical impairments were anxiety and
mental stress, she failed to show that a licensed physician diagnosed
her as having anxiety or stress disorders. Petitioner stated that
she experienced stress and anxiety beginning in the fall of 1999 when
her daughter developed a drug addiction. However, no objective medical
evidence establishes that the stress and anxiety lasted beyond a several
month period or was permanent in nature. In addition, petitioner
provided no health care statement from a treating physician regarding
her mental health during the period at issue other than the statement
from her friend as noted above. More importantly, we find that there
is no evidence in the record that petitioner's stress and/or anxiety
significantly limited her ability to perform any major life activities,
including working or concentrating. There is no objective medical
evidence which demonstrates in any way that the stress and anxiety
petitioner experienced significantly limited her ability to work or
concentrate to the point that her mental condition was responsible
for her failure to account for $1,585.99 in agency funds.<3> See
EEOC Enforcement Guidance on The Americans with Disabilities Act and
Psychiatric Disabilities (March 25, 1997). We find that petitioner
has failed to meet her burden of persuasion that she is or was a person
with a disability as defined by the Rehabilitation Act. As a result,
we find that the MSPB AJ correctly concluded that petitioner failed to
show adequate evidence that her condition substantially limited any major
life activities such that she is a qualified individual with a disability.
Based on the foregoing, the Commission concurs with the MSPB AJ's finding
that the agency's action did not constitute disability discrimination.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the initial decision
of the MSPB AJ mitigating the agency's action. The Commission finds
that the AJ's initial decision constitutes a correct interpretation of
the laws, rules, regulations, and policies governing this matter and is
supported by the evidence in the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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,
based on the decision of the Merit Systems Protection Board, within thirty
(30) calendar days of 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
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
March 22, 2002
__________________
Date
1 The MSPB AJ's initial decision was issued on February 27, 2001, but the
AJ stated that it would become final on April 3, 2001. Petitioner was
given thirty (30) days from the date the AJ's initial decision became
final to file a petition for review with the Commission. As petitioner's
petition for review with the Commission was filed on May 2, 2001, we
find that the petition was filed with the Commission in a timely manner.
2 Petitioner's friend stated that she is certified as a psychiatric/mental
health nurse by the American Psychiatric Association.
3 We note that petitioner contended before the AJ that the agency
did not provide her a reasonable accommodation during the period
she experienced stress and/or anxiety. The Rehabilitation Act does
not require an employer to provide a reasonable accommodation for an
employee who does not have a disability as defined by the statute.