01a34036
11-24-2004
Marcella Baker, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Marcella Baker v. Department of Veterans Affairs
01A34036
November 24, 2004
.
Marcella Baker,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A34036
Agency No. 200P-2613
Hearing No. 350-A1-8328X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning her 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 Physician Assistant, Senior Grade,
at the agency's Ambulatory Care/Diamond Clinic in Phoenix, Arizona, filed
a formal EEO complaint on December 5, 2000, which was later amended in
March and May 2001. In her formal complaint, complainant alleged that
the agency had discriminated against her on the basis of her disability
(Coccidiomycosis) when: (1) she was given a rating of �satisfactory� on
her annual proficiency report on October 10, 2000, and (2) management
did not promote her to the Chief Grade in October 1999 or October 2000.
Complainant also alleged she was subjected to a hostile work environment
on the bases of disability and reprisal for prior protected EEO activity
when:
on September 21, 2000, one of complainant's co-workers responded to
an email informing the staff that complainant would be out on leave
with the comment, �So if I whine, then I can get my workload reduced!
Perhaps the point would be better made this way, if one shows up on time,
does their work and does not try to dump their work on someone else,
then we would not have this issue. You know the things that most of
us learned in first grade.�
on October 10, 2000, another of complainant's co-workers arrived late
for work and stated �Well, I'm being Marcie Baker today.�
On December 26, 2000, complainant became aware that her light duty
request for a schedule reduction was not granted;
on March 1, 2001, complainant's supervisor stated �I haven't felt
comfortable signing some of the e-mails you sent me.�
on March 5, 2001, complainant received a memorandum indicating that
her leave usage was excessive, and that further evidence of excessive
leave usage would result in disciplinary action.
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 even taking the facts in the light most favorable
to complainant, no genuine issue of material fact exists. The AJ further
concluded that complainant failed to establish a prima facie case of
disability discrimination, as she failed to show that she is an individual
with a disability under the Rehabilitation Act. Specifically, the AJ
found that complainant failed to show that her impairment substantially
limits any of her major life activities.
The agency's final order implemented the AJ's decision. Additionally, the
agency issued a finding of no discrimination on the basis of reprisal
because the AJ failed to address this allegation in the decision
without a hearing. On appeal, complainant contends that the AJ erred
in finding that she is not an individual with a disability under the
Rehabilitation Act. Complainant also contends that the record was not
sufficiently developed to allow a decision to be made on the merits of
her complaint.<1>
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). The Commission's regulations allow an AJ to issue
a decision without a hearing when she finds that there is no genuine
issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is �genuine� if
the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is �material� if it has the potential to affect the outcome
of the case. If a case can only be resolved by weighing conflicting
evidence, a hearing is required. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for such disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the AJ
appropriately issued a decision without a hearing, as no genuine dispute
of material fact exists. We further find that, despite complainant's
contentions on appeal, the record is adequately developed to allow a
decision on the merits. We note that in order to establish a prima facie
case of disability discrimination, complainant must establish that she
is a qualified individual with a disability. See Sims v. United States
Postal Service, EEOC Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. �
1630.4 (prohibiting discrimination against qualified individuals with
disabilities). A "qualified" individual with a disability satisfies the
requisite skills and experiences for the job, and is capable of performing
the essential functions of the position with or without a reasonable
accommodation. See 29 C.F.R. � 1630.2(m). To prove a prima facie case,
complainant also must show that the agency took adverse action against
her or failed to provide a reasonable accommodation, and must demonstrate
that a causal relationship exists between the agency's reasons for its
actions, and complainant's disability. See Moore v. Department of the
Army, EEOC Request No. 05960093 (October 16, 1998).
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 record of such impairment; or (3) is regarded as
having such an impairment. See 29 C.F.R. � 1630.2(g) (1)-(3). A physical
impairment includes any physiological disorder affecting, inter alia,
neurological, musculoskeletal, and/or endocrine systems. See 29 C.F.R. �
1630.2(h)(1). The impairment must substantially limit complainant,
or significantly restrict her as to the condition, manner, or duration
under which she performs a particular major life activity as compared
with the performance of the average person in the general population. See
29 C.F.R. � 1630.2(j)(1)(ii).
Determinations regarding whether a complainant is an individual
with a disability must be made on a case-by-case basis. See Bragdon
v. Abbott, 524 U.S. 624, 641-642 (1998). In determining whether
complainant suffers a substantial limitation to a major life activity,
the Commission must consider the nature and severity of the impairment,
the duration or expected duration of the impairment, and the permanent
or long-term impact resulting from the impairment. 29 C.F.R. �
1630.2(j)(2)(i)-(iii). Additionally, the effects of any �[mitigating]
measures - both positive and negative - must be taken into account when
judging whether that person is �substantially limited.'� See Sutton
v. United Airlines, 527 U.S. 471, 482 (1999).
Here, we concur with the AJ's finding that complainant failed to establish
a prima facie case of disability discrimination, as she failed to show
that her coccidiomycosis substantially limits any of her major life
activities. The record reflects that in her affidavit, complainant states
that treatment for her condition began in December 1999, and included
the taking of a prescription antifungal medication, x-rays and CT scans.
Complainant further states that while she no longer takes the antifungal
medication, she has an inhaler to use if she has trouble breathing.
Complainant specifically states that �[she] would not say that [she's]
permanently disabled,� but that she does suffer some residual problems of
sensitivity to humidity, dust and wind. Further, complainant denies that
her condition substantially limits any major life activities, and states
that �when [she's] not feeling well, [she has] to do things a little
more slowly and pace [herself], but [she] can do whatever [she needs] to
do.� While complainant avers on appeal that her condition �can be very
debilitating and often fatal,� we find that she has failed to provide
any evidence to rebut her earlier affidavit statements which show that
her coccidiomycosis did not substantially limit any major life activities.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
November 24, 2004
__________________
Date
1 We note that although the AJ failed to address complainant's allegation
of reprisal discrimination in the decision without a hearing, complainant
did not raise the issue of reprisal discrimination on appeal, and as such,
we need not address that basis in the instant decision.