01A10628
03-06-2003
Dennis C. Reitman, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Dennis C. Reitman v. Department of the Air Force
01A10628
March 6, 2003
.
Dennis C. Reitman,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A10628
Agency No. LE1C99002
Hearing No. 120-AO-3066x
DECISION
Dennis C. Reitman (complainant) timely initiated an appeal from the
agency's final order concerning his equal employment opportunity (EEO)
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 order.
The record reveals that complainant, a Computer Assistant Supervisor
at the agency's Langley Air Force Base in Virginia, filed a formal EEO
complaint on February 10, 1999, alleging that the agency had discriminated
against him on the basis of disability (sleep disorder, stress disorder,
gastrointestinal problems, migraines) when, on December 8, 1998, the
agency refused to allow him to work a straight day shift, which he had
requested as a reasonable accommodation.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish that he is an
individual with a disability within the meaning of the Rehabilitation Act.
In so finding, the AJ noted that complainant submitted documentation
from his doctors which indicates that complainant has a sleep disorder,
migraines and gastrointestinal problems, but failed to produce evidence
sufficient to establish that any of these impairments substantially
limit a major life activity. The AJ noted that complainant's doctors
stated that complainant should not be on rotating shifts, but failed to
describe whether and to what extent complainant's impairments interfered
with his functioning in relation to a major life activity.
The AJ went on to find that the agency made a good faith effort to
accommodate complainant by allowing him to work the day shift and the
swing shift, but eliminating the �mid� shift requirement.<1> The AJ
also noted that complainant himself sent electronic mail messages to
his supervisors demanding the right to work all three shifts, thereby
acknowledging that he did not need an accommodation.
The AJ concluded that, even when considering the evidence in the light
most favorable to complainant, complainant failed to establish that he
was subjected to disability-based discrimination. The agency's final
order implemented the AJ's decision.
On appeal, complainant restates arguments previously made before the AJ.
He also contends that the AJ's decision contains numerous errors.
Complainant argues, among other things, that the agency's doctor never
asked him for a medical release and that had he been asked, he would
have provided one. He argues that the AJ misunderstood the electronic
mails she referenced in support of her finding that he did not need
an accommodation. He contends that he did not intend to indicate
in these messages that he did not need an accommodation, but rather
was attempting to emphasize that his request for an accommodation had
not been officially approved or disapproved He argues that his sleep
disorder is a disability in that sleep is a major life activity and
that the deprivation of sleep harms all other major life activities.
Finally, he argues that the agency failed to respond properly to his
requests for reasonable accommodation.
In response, the agency restates the position it took in its FAD and in
its Motion for Findings of Fact and Conclusions of Law Without a Hearing,
and requests that we affirm its final order.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Complainant failed to establish that he is an individual
with a disability within the meaning of the Rehabilitation Act.<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). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, sleeping, learning,
and working. 29 C.F.R. � 1630.2(i); see also EEOC Enforcement Guidance
on the Americans with Disabilities Act and Psychiatric Disabilities
(Psychiatric Guidance), No. 915.002 (March 25, 1997).
The determination as to whether an individual has an impairment
that substantially limits a major life activity is made on a case by
case basis. See Bragdon v. Abbot, 524 U.S. 624 (1998); Interpretive
Guidance on Title I of the Americans with Disabilities Act, Appendix to
29 C.F.R. 1630 (Interpretive Guidance) at 1630.2(j). An impairment is
substantially limiting when it prevents an individual from performing
a major life activity or when 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 Interpretive Guidance, 1630.2(j).
In the case at hand, complainant submitted evidence which establishes
that he suffers from a sleep disorder, migraines and gastrointestinal
problems and that his doctors recommended that he remain on the day
shift due to these impairments. Complainant did not, however, provide
evidence sufficient to prove that any of his impairments prevent him
from performing a major life activity or significantly restrict his
ability to perform a major life activity. Although complainant correctly
notes that sleeping is a major life activity, and provided information
indicating that he has a diagnosed sleep disorder and difficulty
sleeping, evidence that an individual has some trouble getting to sleep
or occasionally sleeps fitfully does not establish that the individual
is substantially limited. See Psychiatric Guidance, fn. 16. Similarly,
although complainant noted that his migraine headaches occasionally make
his vision blurry, he provided no details as to the frequency of this
occurrence, nor any other information to establish that his ability to
see is substantially limited.
Although complainant also argued that he is substantially limited in the
major life activity of working, he provided no evidence to support this
contention.<3> In order to establish that he is substantially limited
in working, a complainant must establish he is unable to perform or
significantly restricted in his 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 Sutton
v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel
Service, Inc., 527 U.S. 516 (1999); Hickman v. Department of Justice,
EEOC Appeal No. 01A11797 (December 20, 2001). Here, complainant
provided no evidence to indicate that he is restricted in this manner.
Instead, he simply argued that he is unable to work rotating shifts
and must remain on the day shift due to his impairments. Accordingly,
we find that complainant failed to establish that has an impairment
which substantially limited a major life activity. Nor did complainant
establish that he has a record of such an impairment or was regarded by
the agency as having such an impairment.
Complainant contends on appeal that he could have provided more medical
documentation if the agency had requested a medical release. The record
establishes, however, that the AJ requested that complainant state with
specificity in his Prehearing Statement what his impairments are and �the
specific limitations imposed on [him] as a result of each impairment.�
Accordingly, even assuming the agency led complainant to believe that
he had provided sufficient medical documentation, he was given an
opportunity before the AJ to provide documentation to establish that
he is an individual with a disability. In response to the AJ's order,
complainant submitted a Prehearing Statement in which he stated that
his �physical disabilities affect a major life function including his
ability to work and sleep,� but provided no further facts specifying
how these major life activities were limited.<4>
Accordingly, even construing the evidence in the light most favorable
to complainant, he failed to establish that he is an individual with
a disability within the meaning of the Rehabilitation Act. The AJ's
issuance of a decision without a hearing was therefore appropriate and the
agency's final order implementing the AJ's finding of no discrimination
is AFFIRMED.
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
March 6, 2003
Date
1 The �mid� shift refers to the 11 p.m. to 7 a.m. shift.
2The 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.
3 The major life activity of working should only be considered if an
individual is not substantially limited with respect to any other major
life activity. See Interpretive Guidance, 1630.2(j); Boyle v. United
States Postal Service, EEOC Appeal No. 01980819 (August 16, 2001).
4 Although complainant contends that the agency failed to engage
properly in the interactive process, we note that an employee who is
not an individual with a disability is not entitled to a reasonable
accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act (March 1,
1999), at question 1 (�In some instances, before addressing the merits
of an accommodation request, employer must determine if an individual's
medical condition meets the definition of �disability,' a prerequisite
for the individual to be entitled to a reasonable accommodation�).