01973401
08-03-2000
Mary Flynn-Banigan, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service) Agency.
Mary Flynn-Banigan v. Department of Justice
01973401
August 3, 2000
Mary Flynn-Banigan, )
Complainant, )
) Appeal No. 01973401
v. ) Agency No. 1835232
)
Janet Reno, )
Attorney General, )
Department of Justice, )
(Immigration and Naturalization Service) )
Agency. )
____________________________________________)
DECISION
Mary Flynn-Banigan (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant alleged that she was discriminated
against on the basis of physical disability (vision impairment) when
a representative of the Immigration and Naturalization Service (INS)
told her that a requirement for the position of Border Patrol Agent
(BPA) was 20/70 uncorrected vision and that there was no sense going
through with the scheduled interview if she did not possess such vision,
which caused complainant to leave without being interviewed.
BACKGROUND
Complainant filed a formal complaint on November 10, 1983, claiming
disability discrimination as described above. The complicated procedural
history of this case is sent forth in great detail in Flynn-Banigan
v. Department of Justice, EEOC Appeal No. 01942876 (March 1, 1996) and
therefore will only be summarized as necessary in the current decision.
The present appeal was filed in response to the third FAD on the complaint
at issue. In its first FAD (FAD 1), remanded by the Commission on
August 22, 1988, the agency dismissed the complaint for failure to
state a claim.<2> On appeal, the Commission noted that FAD 1 improperly
considered the merits of complainant's complaint without benefit of an
investigation, and remanded the complaint for further processing.<3>
The agency conducted an investigation and issued a second FAD (FAD
2), finding that complainant failed to establish that she was disabled
within the meaning of the Rehabilitation Act. The agency also found that
assuming complainant was disabled, she was not �otherwise qualified� for
the position in question because she did not meet the 20/70 uncorrected
vision standard established by the Office of Personnel Management (OPM)
for law enforcement positions, such as the BPA position.
Complaint again filed an appeal and, on March 1, 1996, the Commission
issued a second decision, (EEOC Appeal No. 01942876), again remanding
the complaint for supplemental investigation, this time ordering the
agency to complete specific tasks and provide specific information.
The Commission noted that despite the previous order, the record still did
not contain sufficient evidence by which to determine if complainant met
the Rehabilitation Act's definition of an individual with a disability.
The Commission noted that there was not any evidence to indicate that
the agency even attempted to obtain this information, despite the fact
that the order was issued six years prior to FAD 2. The Commission
ordered that complainant be given a reasonable amount of time to provide
medical evidence concerning the nature and severity of her alleged vision
impairment and its effect on any of her major life activities.
The Commission went on to find that if complainant failed to present
this medical evidence or presented documentation indicating that she met
the vision standards when she was told not to complete the interview,
the agency was free to find that she failed to meet the threshold
requirements of the Rehabilitation Act and issue a FAD reaching this
conclusion. The Commission further noted, however, that if complainant
submitted medical documentation or other evidence that indicated that
her vision was such that she failed to meet the 20/70 vision standards
at the time of her scheduled interview, the agency was to proceed with
a supplemental investigation to provide certain specific information.
Among other tasks, the agency was to join OPM as a party to the remanded
proceedings so that there would be a full and fair opportunity to address
the question of whether the vision standards were being applied to a
class of positions or a wide range of positions in various classes, and
the underlying validity of the standards. During the investigation, the
Commission ordered that OPM should have direct input, particularly with
respect to the job relatedness of the 20/70 standard. The Commission
ordered the agencies to issue a joint final decision or, if necessary,
two separate decisions.
On February 25, 1997, the agency issued a third final decision.
Citing medical information submitted by complainant, the agency found
that her uncorrected vision when she was scheduled to interview for the
position was 20/300 in both eyes. The agency assumed that this was
a serious enough vision impairment to limit complainant's ability to
engage in major life activities<4> and therefore determined that she is
an individual with a disability. The medical evidence establishes that
complainant's corrected vision at the time of the scheduled interview
was 20/20 in both eyes.
The agency went on to conclude, once again, that complainant was
not �otherwise qualified� for the position because the job required
uncorrected vision of 20/70, based on the job description and OPM's
vision requirements established in 1973. The agency noted that this
requirement was grounded in safety and performance concerns and, as such,
reflected a valid job-related concern about a BPA's ability to safely and
effectively perform his or her job. It is from this FAD that complainant
now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency failed to comply with
this Commission's order in EEOC Appeal No. 01942876. She notes that
OPM was not joined as a party and that no supplemental investigation
into the vision standard at issue was conducted. She also asserts that
the agency is attempting to dodge the issues set forth in her case and
has handled the case in a negligent manner, as illustrated by the 13
� years between the filing of her complaint and the most recent FAD.
The agency offers no response, other than to note that it has misplaced
certain documents related to the case.
FINDINGS AND ANALYSIS
The record does not include any evidence that the agency even attempted
to comply with the Commission's order in EEOC Appeal No. 01942876,
other than a letter requesting medical documentation from complainant.
Rarely have we seen so blatant a refusal to comply with an order issued
by this Commission.
While we admonish the agency for its undisguised decision to ignore our
previous order, we are bound by the law on disability discrimination as
it stands today. The Supreme Court has held that the determination
of whether a person is an "individual with a disability" must be based
on his or her condition at the time of the alleged discrimination.
The positive and negative effects of mitigating measures used by the
individual, such as medication or an assistive device, must be considered
when deciding if he or she has an impairment that substantially limits
a major life activity. Sutton v. United Airlines, Inc., 527 U.S. 471
(1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).
In the case at hand, the evidence establishes that complainant's corrected
vision was 20/20 in both eyes at the time of the scheduled interview.
She is therefore not substantially limited in the major life activity of
seeing, nor did she submit evidence indicating that she is substantially
limited in any other major life activity.
Complainant also failed to establish that she has a record of an
impairment that substantially limits a major life activity or that she
was regarded by the agency as being substantially limited in a major life
activity. The medical evidence submitted by complainant reveals that
her vision was always corrected to 20/20 and that she therefore has no
record of a vision impairment that substantially limits her. Moreover,
there is no evidence to suggest that the agency regarded complainant as
substantially limited in the major life activity of seeing. The evidence
only establishes that the agency representative told complainant that
she needed to have 20/70 uncorrected vision and 20/20 corrected vision
to qualify for the BPA position.
When the evidence does not establish that a complainant is substantially
limited in any other major life activity, the Commission will consider the
major life activity of working. See Interpretive Guidance on Title I of
the Americans with Disabilities Act, Appendix to part 1630, 29 C.F.R. �
1630.2(j).<5> To be substantially limited in one's ability to work, one
must be restricted from performing either a class of jobs or a broad range
of jobs in various classes. See 29 C.F.R. � 1630.2(j)(3)(i). In the case
at hand, however, the legal analysis set forth by the U.S. Supreme Court
in Sutton, forecloses the possibility that complainant is substantially
limited, has a record of a substantial limitation or was regarded as
substantially limited, in working.
In Sutton, the vision requirements of United Airlines disqualified the
plaintiffs from working as �global airline pilots.� The policy required
uncorrected vision of 20/100 and the plaintiffs' uncorrected vision was
20/200. Finding that an employer is free to decide that some limiting,
but not substantially limiting, impairments make individuals less than
ideally suited for a job, the Court found that the allegation that an
employer has a vision requirement in place does not establish that the
employer regards an individual who does not meet the requirement as
substantially limited in the major life activity of working. The Court
determined that to be substantially limited in working, one must be
precluded from working in more than one type of job, a specialized job,
or a particular job of choice. The Supreme Court went on to find that
the position of �global airline pilot� was a single job and the fact that
the employer regarded petitioners' poor eyesight as precluding them from
holding that job, did not establish that the employer regarded them as
having an impairment that substantially limited them in the major life
activity of working. In so finding, the Court noted that there were a
number of other positions which utilized petitioners' skills, such as
regional pilot and pilot instructor.
Here, complainant failed to establish that the vision requirement
in question precluded her from working in more than one type of job.
Moreover, complainant's application establishes that she had a variety
of skills in 1983 and that there were may other types of positions which
utilized those skills. Indeed, complainant was working as a Geriatric
Aide before testing for the BPA position. Thus, we find that complainant
was not substantially limited in the major life activity of working
or regarded as such by the agency. We also find that she did not have
a record of being substantially limited in working.
Accordingly, complainant failed to establish that she is an individual
with a disability within the meaning of the Rehabilitation Act.
The agency's finding of no discrimination is therefore AFFIRMED.
We note, in closing, that the agency's conduct in this case, including
disregard for Commission orders and unconscionable delays in investigating
and processing, has bordered on the contumacious. While we are bound by
the law on disability discrimination as it stands today and therefore
must affirm the agency's finding of no discrimination in this case,
we caution the agency that future behavior of the type engaged in here
will not be tolerated and remind the agency of this Commission's power
to issue sanctions against an agency that systematically abuses the
administrative process. See generally DaCosta v. Department of Education,
EEOC Appeal No. 01995992 (February 25, 2000).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 3, 2000 ____________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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.
2Flynn-Banigan v. Department of Justice, EEOC Appeal No. 01880998 (August
22, 1988), request to reopen denied EEOC Request No. 05881033 (May 17,
1989).
3 Both complainant and the agency filed requests for reconsideration,
which were denied.
4 No specific major life activity was mentioned in the medical documents
or by the agency.
5The 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. Since that time,
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 at www.eeoc.gov.