03A20065
08-16-2002
Michele A. Bean, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Michele A. Bean v. Department of the Air Force
03A20065
August 16, 2002
.
Michele A. Bean,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 03A20065
MSPB No. AT0752010329I1
DECISION
On May 2, 2002, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a 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.
Petitioner, a Child Development Program Leader at an agency facility
in Hulbert Field, Florida alleged that she was discriminated against
on the basis of disability (anxiety disorder, panic disorder, major
depressive disorder) when she was denied a reasonable accommodation
and removed from her position. On January 25, 2001, petitioner filed
a mixed case appeal with the MSPB. After denying petitioner's request
for a hearing due to the failure of petitioner's attorney to comply with
his orders, the Administrative Judge found that the agency established
that petitioner was medically unable to perform her job and sustained
the agency's removal action. The AJ also determined that petitioner
did not prove that she was subjected to disability-based discrimination,
noting that she failed to establish that she could perform the essential
functions of her position with or without an accommodation and therefore
was not a qualified individual with a disability. The Board 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 allegation 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).
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
In so finding, we note that petitioner failed to prove that she was an
individual with a disability at the time of her request for a reasonable
accommodation. The record establishes that petitioner had worked for
approximately 19 years as a Child Development Program Leader assigned to
the Infant Section. On March 6, 2000, her supervisor (S1) notified her
that she would be reassigned to the Toddler Section. Petitioner became
very upset at the prospect of this reassignment, went out on sick leave
the following day, and was hospitalized on two subsequent occasions
between March 7, 2000 and April 5, 2000 due to problems she was having
in coping with the potential reassignment.
On March 28, 2000, S1 received a letter from petitioner's doctors
asking that petitioner's impairment be accommodated by allowing her to
continue to work in the Infant Section. In response to this request, when
petitioner returned to work on April 5, 2000, S1 temporarily reassigned
petitioner to duties which did not involve contact with children
and scheduled petitioner for a fitness for duty exam. The doctor who
performed the fitness for duty exam determined that complainant was not
medically qualified for her position as a Child Care Development Leader
and, on December 1, 2000, the agency therefore notified complainant of
her proposed removal.
On appeal to this Commission, petitioner argues that it was the agency's
failure to grant her March 28, 2000 reasonable accommodation request
that led to the worsening of her condition and her eventual removal.
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o);
29 C.F.R. � 1630.2(p).<1> In the case at hand, however, petitioner
failed to establish that she was an individual with a disability within
the meaning of the Rehabilitation Act at the relevant time.
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). Other major life activities include thinking,
concentrating, interacting with others, caring for oneself, and sleeping.
See EEOC Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities, March 25, 1997, at question 3.
Here, complainant did not establish that she was substantially limited in
any major life activity when she requested a reasonable accommodation.
In a joint letter dated March 28, 2000, petitioner's psychiatrist
and psychologist noted that petitioner was suffering from several
psychiatric disorders which �appear to have developed primarily due to
[her] anticipatory anxiety concerning the possibility of major changes
in her work assignment.� This letter noted that if petitioner's medical
needs were not accommodated by allowing her to continue to work with the
specific population with which she felt most comfortable, she �could
become medically disabled on a long-term basis due to work-related
stress.� In a subsequent letter dated August 7, 2000, petitioner's
doctors noted that petitioner had developed many signs of Post Traumatic
Stress Disorder (PTSD), including, among other things, difficulties
sleeping and concentrating, and feelings of estrangement from others.
From this medical evidence, it appears that petitioner's impairment
affected her ability to perform the major life activities of sleeping,
concentrating, interacting with others, and working.
Petitioner must prove, however, that her impairment substantially limits
a major life activity. To be substantially limited an individual must be
unable to perform a major life activity or significantly restricted as to
the condition, manner, or duration under which he or she can perform that
activity as compared to the average person in the population. See 29
C.F.R. � 1630.2(j)(1). Here, petitioner's doctors merely indicated
that petitioner had developed many signs of PTSD, and listed a number
of examples. Petitioner provided no information as to the frequency
or severity of her sleeping and concentrating difficulties, nor did
she provide any details to describe how her feelings of �estrangement
from others� affected her. She therefore failed to provide sufficient
evidence to establish that she is significantly restricted in the major
life activities of sleeping, concentrating, interacting with others,
or any other major life activity.
Furthermore, petitioner failed to prove that she is substantially
limited in the major life activity of working.<2> In order to do so,
a petitioner must show that she is unable to perform or significantly
restricted in her 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, petitioner alleged
that because of her impairment, she was unable to work as a child care
developer with toddlers, and that after August 7, 2000, she was unable
to work under the supervision of S1 or in a similar position at a nearby
Air Force Base due to her fears of S1's influence over individuals who
worked there. It appears, then, that petitioner was unable to work in
a position with ties to a particular individual (S1) and unable to work
with children above a certain age. Neither of these limitations restrict
petitioner in her ability to perform a class of jobs or a broad range of
jobs in various classes. Accordingly, we find that petitioner failed to
establish that she was substantially limited in any major life activity
at any time prior to her proposed removal on December 1, 2000.
Finally, we find that petitioner did not establish that she was regarded
as having an impairment that substantially limited a major life activity
or that she had a record of such an impairment. In so finding, we
note that although the agency determined that petitioner was medically
unqualified for her position as a Child Care Development Leader, there is
no evidence that it regarded her as unable to perform or significantly
restricted in her ability to perform a major life activity. At most,
the agency regarded petitioner as unable to work in her current position
or a position at a nearby Child Development Center. Similarly, although
the record establishes that petitioner was briefly hospitalized in March
2000 due to her extreme reaction to the news of her reassignment, there
is no evidence that she has a record of an impairment that substantially
limited a major life activity.
As petitioner failed to establish that she was an individual with
a disability at the relevant time, the agency's failure to provide
her with a reasonable accommodation in response to her March 28, 2000
request and subsequent decision to propose her removal did not violate
the Rehabilitation Act.
In response to the proposed removal, petitioner submitted a letter from
her doctors, dated December 5, 2000, which states that petitioner was
�currently totally disabled from any gainful employment.� The agency
subsequently removed petitioner, effective January 17, 2001, relying on
the results of the fitness for duty exam, as well as petitioner's own
doctors' letter indicating that she was totally disabled from gainful
employment. To the extent that the December 5, 2000 letter suggests that
petitioner was, as of December 5, 2000, substantially limited in the major
life activity of working and therefore an individual with a disability,
we note that she was not a qualified individual with a disability at
this point. To be a qualified individual with a disability, one must
be able to perform the essential functions of the position she holds or
desires with or without an accommodation. See 29 C.F.R. � 1630.2(m).
After December 5, 2000, petitioner herself acknowledged that she is
unable to work in any position.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, we hereby
CONCUR with the MSPB's determination that petitioner was not subjected
to disability-based discrimination.
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
August 16, 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, petitioner's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The 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 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 Appendix to 29 Part 1630 - Interpretive Guidance on
Title I of the Americans with Disabilities Act, 1630.2(j); Boyle v. United
States Postal Service, EEOC Appeal No. 01980819 (August 16, 2001).