03A20013
04-19-2002
Karen Kice, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Karen Kice v. Department of the Navy
03A20013
April 19, 2002
.
Karen Kice,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A20013
MSPB No. DC-0752-00-0779-I-1
DECISION
On November 14, 2001, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a November 2,
2001 Final Order issued by the Merit Systems Protection Board (MSPB)
concerning her 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> Petitioner, a Woodcrafter at the Norfolk Naval Shipyard
in Virginia, alleged that she was discriminated against on the basis of
disability (severe depression) when she was placed in involuntary leave
status.<2> On August 31, 1999, petitioner filed a mixed case appeal
with the MSPB. After a hearing, the MSPB Administrative Judge found,
inter alia, that the agency did not violate the Rehabilitation Act,
and the Board subsequently denied petitioner's petition for review.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the MSPB
with respect to the claim of discrimination constitutes an incorrect
interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
The MSPB Administrative Judge concluded that petitioner experienced
depression and anxiety which limited her ability to work and assumed
arguendo that the condition was permanent. The Administrative Judge
then concluded that petitioner failed to establish that she was a
qualified individual with a disability because she did not articulate
a reasonable accommodation which would have enabled her to perform the
essential functions of her job. Although we disagree with the MSPB
Administrative Judge's analysis, we, for the following reasons, concur
with her conclusion that the agency did not violate the Rehabilitation
Act when it placed petitioner in involuntary leave status.
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). Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I of
the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
A "qualified" individual with a disability is one who satisfies the
requirements for the employment position she holds or desires and
can perform the essential functions of that position with or without
reasonable accommodation. 29 C.F.R. � 1630.2(m).
The determination as to whether an individual has an impairment which
substantially limits a major life activity is made on a case by case
basis. Bragdon v. Abbott, 524 U.S. 624 (1998); Interpretive Guidance on
Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. �
1630.2(j). Petitioner identifies her impairment as severe depression.
Since petitioner does not contend and the evidence of record does
not indicate that her impairment substantially limits any other major
life activities, we will consider the major life activity of working.
Interpretive Guidance on Title I of the Americans With Disabilities Act,
Appendix to 29 C.F.R. � 1630.2(j).
The inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working. 29 C.F.R. �
1630.2(j)(3)(i). To be substantially limited in the major life activity
of working, one must be precluded from more than one type of job,
a specialized job or a particular job of choice. Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999). An individual is substantially
limited in the major life activity of working if the individual has
an impairment that significantly restricts him or her from currently
performing a class of jobs or a broad range of jobs in various classes.
29 C.F.R. � 1630.2(j)(3).
Petitioner's work related restriction was that she needed a low stress
job with responsibilities that remained routine and consistent from
day to day. Petitioner was also restricted from working on ships.
The Commission declines to find that these restrictions significantly
restricted petitioner from performing a class of jobs or a broad range
of jobs in various classes. See Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000) (complainant's restriction
from working in high places or with power tools and from engaging in
hazardous activity did not render complainant substantially limited in
major life activity of working).
The Commission further finds that the record does not support a finding
that petitioner had a record of or was regarded as having an impairment
which substantially limited a major life activity. See Vanderford
v. Department of the Navy, EEOC Petition No. 03990071 (August 31, 2000).
Accordingly, the Commission finds that petitioner was not an individual
with a disability within the meaning of the Rehabilitation Act at
the time of the alleged discrimination, and the Commission concurs
with the decision of the MSPB that the petitioner has not established
discrimination based on disability. See Miller v. Department of the Navy,
EEOC Petition No. 03A00066 (May 4, 2000).
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 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
April 19, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed.
I certify that this decision was mailed to petitioner, in care of her
representative, the agency, and the MSPB on:
__________________
Date
______________________________
1 The 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.
2 Although petitioner raised a claim of sex discrimination before
the MSPB, she did not raise the claim in her brief in support of her
appeal to the Commission. Accordingly, we decline to address the MSPB
Administrative Judge's conclusion that petitioner was not discriminated
against on the basis of sex.