03a00118
11-02-2000
David B. Wilson, Petitioner, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
David B. Wilson v. Department of the Navy
03A00118
November 2, 2000
.
David B. Wilson,
Petitioner,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A00118
MSPB No. DC0432990535I1
DECISION
On July 25, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The Commission accepts this petition in accordance with the provisions of
the Civil Service Reform Act of 1978 and EEOC Regulations at 29 C.F.R. �
1614.302 et seq.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that the
agency did not discriminate against petitioner on the basis of disability
(depression)<2> when he was removed from service after his performance did
not improve upon being placed on a performance improvement plan (PIP),
constitutes a correct interpretation of all applicable laws, rules,
regulations, and directives and is supported by the record as a whole.
BACKGROUND
In an initial decision dated December 30, 1999, the MSPB Administrative
Judge (AJ) affirmed the agency's actions, finding that removal was
appropriate, and that petitioner failed to establish that he was subjected
to discrimination. Specifically, the AJ determined that petitioner's
claim that the agency should have provided him with a reasonable
accommodation in the form of a delay or extension of the PIP period so
that he could control his clinical depression, was not well-founded.
The AJ concluded that petitioner failed to establish that he is disabled
and failed to show that his unacceptable performance was caused by a
disability. Petitioner filed a petition for review with the full Board,
which was denied. He then filed this petition with the Commission.
After a thorough review of the record, we find that petitioner failed to
establish that he is an �individual with a disability� within the meaning
of the Rehabilitation Act.<3> 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).
In the case herein, petitioner's evidence of disability includes a letter
and a psychological evaluation from a licensed clinical psychologist
(LCP), who was treating complainant during the PIP period, as well as
LCP's testimony at the hearing. This evidence establishes that, during
the relevant time, petitioner was suffering from clinical depression, for
which he was taking anti-depressants. In order for this impairment to
rise to the level of a disability, however, it must substantially limit
one or more of petitioner's major life activities. An impairment is
�substantially limiting� if it renders an individual unable to perform
a major life activity or if it significantly restricts the condition,
manner or duration under which an individual can perform a major life
activity as compared to the average person in the general population.
See 29 C.F.R. � 1630.2(j). In his testimony, LCP noted that petitioner's
depression caused �some disruption in functioning.... [d]ifficulty
concentrating, paying attention...[l]ow energy levels...sleep disruption
of some sort...� and that his depression could �very well interfere�
with his ability to train and learn new material. While this suggests
minor limitations in the major life activities of sleeping and learning,
petitioner provided no evidence of a substantial limitation in either
these, or any other, major life activity.
Complainant provided no evidence that the agency regarded him as
substantially limited in a major life activity. Furthermore, while
LCP indicated that petitioner's depression may have been more severe
prior to his employment with the agency, there is no other evidence on
this point and nothing to establish that petitioner has a record of an
impairment that substantially limited a major life activity.
Accordingly, petitioner failed to establish that he is an individual
with a disability within the meaning of the Rehabilitation Act.
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 final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's 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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0400)
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 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
November 2, 2000
__________________
Date
1 On 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.
2 There is some evidence in the record that petitioner also suffers from
asthma. Petitioner's discrimination claim, however, is related only to
his depression, as evidenced by his formal complaint and petition for
review.
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. 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.