01a32765
09-30-2004
Gailmary McDonald, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Gailmary McDonald v. Department of Veterans Affairs
01A32765
September 30, 2004
.
Gailmary McDonald,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32765
Agency No. 200P-0785-2002103245
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning her 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 decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven that
she was an individual with a disability within the meaning of the
Rehabilitation Act.
BACKGROUND
The record reveals that at one point during her tenure with the agency,
complainant was employed as a Management Trainee in the agency's Canteen
Officer Training program located in San Diego, California. According to
complainant, she was sent to Milwaukee, Wisconsin, for training and
quickly discovered that the supervisor there did not like her, which
ultimately caused her to flunk out of the training program.
In September 1999, complainant was directed to return to the Sepulveda
VA Medical Center in Sepulveda, California, where she served as a Food
Service Worker. Complainant alleges that she was subjected to hostility
and harassment by her supervisor, which caused her to have a mental
breakdown on September 9, 1999. On September 17, 1999, complainant
stopped showing up for work. In a letter dated September 30, 1999, the
agency requested that complainant provide detailed medical documentation
relative to her current medical condition to support her lengthy absence.
Complainant provided the requested medical documentation in a memorandum
dated October 8, 1999. Attached to the memorandum were notes from
complainant's doctor, which gave information about complainant's current
medical condition. The agency determined that the information provided
in the doctor's notes was insufficient, and therefore requested medical
documentation an additional time in a letter dated October 18, 1999.
In response, the doctor provided the agency with essentially the same
information that was attached to complainant's October 8, 1999 memorandum.
This time, however, the doctor suggested to the agency that complainant
could be accommodated by being reinstated into the Canteen Officer
Training program in San Diego, California, or transferred out of food
service and into retail, where she had experience and would not have to
deal with a hostile supervisor who used to be a subordinate.
In a letter dated September 28, 2000, the agency ordered complainant
to return to work. Because the letter was sent to the wrong address,
complainant did not receive it until February 4, 2001. In letters dated
January 19, 2001 and March 18, 2002, the agency notified complainant of a
proposed removal action. Complainant received the letters on February 4,
2001, and March 28, 2002, respectively. Finally, in a letter dated April
10, 2002, received by complainant on April 18, 2002, complainant was
notified that she had been removed from the agency, effective April 22,
2002. In the letter, complainant was charged with being absent without
official leave for the period of September 17, 1999, to March 18, 2002.
At the request of her psychiatrist, complainant filed for disability
retirement June 21, 2002.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 17, 2002, in which she alleged the agency discriminated
against her on the basis of disability (depression) when she was denied
a reasonable accommodation and subjected to a hostile work environment.
The reasonable accommodation claim was based upon the agency's failure
to follow the advice of complainant's psychiatrist to take action (i.e.,
reinstate complainant into the canteen manager training program and
allow her to complete the training she began in San Diego, California,
or transfer her out of food service and into retail where she would
not be under the supervision of a hostile, former subordinate) in
order to allow complainant to continue her employment with the agency.
The hostile work environment claim was based upon management's request
for a comprehensive medical report on October 19, 1999; her receipt
of a memorandum ordering her to return to work on February 4, 2001;
her receipt of a notification of proposed removal on February 4, 2001,
and March 28, 2002; management's decision to remove her from employment,
effective April 22, 2002; and management's failure to process her medical
retirement application.
The complaint was accepted for investigation, and at the conclusion
thereof, 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 a final agency decision.
In its decision, the agency concluded that complainant had not been
discriminated against as alleged. Specifically, the agency concluded
that complainant was not an individual with a disability entitled to
coverage under the Rehabilitation Act. Complainant appealed. On appeal,
complainant challenges the sufficiency of the investigation.
ANALYSIS AND FINDINGS
Insufficient Investigation
On appeal, complainant argues that the agency conducted an insufficient
investigation by taking statements from biased individuals and not
interviewing some of her witnesses. Upon review of the investigation,
it is the conclusion of this Commission that the agency's investigation
was conducted in an unbiased manner, and that all relevant witnesses
were interviewed. Based on the foregoing, it is the ruling of this
Commission the agency's investigation was conducted in accordance with
the applicable EEOC regulations and guidelines.
Disability Discrimination
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. 29 C.F.R. �1630.9.
The Commission also notes that an employee must show a nexus between
the disabling condition and the requested accommodation. See Wiggins
v. United States Postal Service, EEOC Appeal No. 01953715 (April 22,1997).
As a threshold matter in a case of disability discrimination under a
failure to accommodate theory, the complainant must demonstrate that
s/he is an "individual with a disability." EEOC Regulation 29 C.F.R. �
1630.2(g) defines an individual with a disability as one who: 1) has a
physical or mental impairment that substantially limits one or more of
that person's major life activities, 2) has a record of such impairment,
or 3) is regarded as having such an impairment. EEOC Regulation 29
C.F.R. � 1630.2(h)(2)(i) defines "major life activities" as including
the functions of caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.
Although this is an illustrative, not exhaustive, list, there is no
evidence in the record that complainant was substantially limited in a
major life activity due to a physical or mental impairment. From the
medical information in the file, complainant's impairment affected
her ability to sleep, concentrate, and work. Complainant's affidavit
indicated that she suffered from severe mood swings and anxiety
attacks. While sleeping and concentrating are major life activities,
there is no evidence in the record indicating how or to what degree
complainant's impairment affected her ability to engage in those major
life activities.<1> Thus, we cannot determine whether complainant was
substantially limited in these regards. Similarly, complainant presented
no evidence, testimonial or documentary, indicating how her mood swings
and anxiety attacks substantially limited her in any way. Therefore,
we are unable to ascertain whether these particular symptoms affected
a major life activity.
Like sleeping and concentrating, working is also a major life activity.
An individual is substantially limited in this major life activity if
he or she is significantly limited in the 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 29 C.F.R. � 1630.2(j)(3)(i). After reviewing statements from
complainant and her doctor, it appears complainant was unable to work
at the canteen in Sepulveda, California, because she could not get along
with her supervisor, a former subordinate. Nowhere in the file is there
an indication that complainant was unable to work in any other job for
which she was qualified. The inability to perform a single, particular
job, as is the case with complainant, does not constitute a substantial
limitation in the major life of working. Id.
Moreover, complainant has not presented evidence that she had a history
of or was regarded by the agency as having such an impairment. We feel
compelled to note there is no indication that complainant was denied the
opportunity to present evidence proving that she is an individual with
a disability within the meaning of the Rehabilitation Act. Therefore,
we find that complainant has failed to make out a successful disability
claim with regard to the denial of reasonable accommodation, alleged
disparate treatment, and the hostile work environment.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response thereto, and arguments and evidence not
specifically addressed in this decision, we affirm the agency's finding
of no discrimination.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
September 30, 2004
__________________
Date
1Notwithstanding the fact that complainant had some problems
concentrating, her medical information states she was �alert [and]
oriented,� and her �[m]emory, attention span, [and] language skills [were]
intact.� This information also states complainant's �thought processes
[were] logical.�