01A22175
09-29-2004
Sandra S. Silvestri, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.
Sandra S. Silvestri v. Tennessee Valley Authority
01A22175
September 29, 2004
.
Sandra S. Silvestri,
Complainant,
v.
Glenn L. McCullough, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A22175
Agency No. 0619-98093
DECISION
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 reasons set forth below,
we affirm the agency's final decision.
BACKGROUND
Complainant, an agency employee since 1984, was employed as a Clerk-Word
Processor, SB-3 at the agency's Paradise Fossil Plant facility in
Drakesboro, Kentucky.<1> She began seeing a psychiatrist, Director of
Psychiatry, The Medical Center at Bowling Green, in April 1995 and was
diagnosed with severe depression in May 1995. In June 1995, complainant
required hospitalization for her depression for approximately two
weeks, and was out of work for approximately six weeks. She received
electroconvulsive therapy (ECT), and was prescribed a combination of
antidepressant drugs, all with poor response. In 1996, after witnessing
several episodes of hypomania, the psychiatrist revised this initial
diagnosis, and diagnosed complainant with severe bipolar II disorder
with rapid cycling.
Bipolar disorder is characterized by periods of mania alternating with
periods of depression.<2> People with bipolar disorder II, in contrast
to people with bipolar disorder I, experience primarily depression which
alternates with periods of hypomania, elevated mood and energy that
is not as extreme as the symptoms of mania. According to the letters
written by her psychiatrist, complainant has frequent short lasting
episodes of depression which are characterized by extreme hypersomnia,<3>
hyperphagia,<4> anergia,<5> and anhedonia.<6> Complainant also is
a rapid cycler, meaning her mood may change several times a day.
See U.S. National Library of Medicine and the National Institutes
of Health, MEDLINEplus, Health Information (visited October 16, 2003)
<http:// www.nlm.nih.gov/medlineplus>. In addition, complainant suffers
from morbid obesity that has worsened with her chronic depression, chronic
lumbosacral back sprain, that is worsened by her obesity, bronchial
asthma and upper respiratory allergies, as well as chronic recurring and
severe headaches. We note, however, that the only impairment listed in
complainant's complaint is depression/bipolar rapid cycling.
On multiple occasions between 1994 and 1998, complainant asked the
Production Manager and/or the Production Supervisor for a flexible
work schedule in which she could make up time that she missed if her
illness prevented her from coming to work.<7> All of her requests for
reasonable accommodation in the form of a flexible work schedule were
denied. On February 20, 1996, complainant contacted the Plant Manager
and requested Family and Medical Leave Act (FMLA) leave �intermittently
or consecutive as necessary.� Complainant supported her request with
a letter from her psychiatrist dated February 5, 1996, advising the
Plant Manager that complainant has been under his care for serious
depression since May 1995, that complainant would require �continued
treatment,� including medication, and at least one therapy session
per month. The agency granted complainant the FMLA leave. In July
1996, complainant began working directly under the Production Manager.
In his affidavit, the Production Manager admits that he became aware
of complainant's impairment around that time. On April 16, 1997,
complainant submitted a request to the Production Manager for more
FMLA leave to be taken �intermittently or consecutive as necessary�
over the next 12-month period. Complainant enclosed a letter from her
psychiatrist dated April 14, 1997, supporting her request for FMLA leave.
The FMLA leave was again granted, but complainant alleged that on May 5,
1997, the Production Manager told her that she had worked less than nine
weeks in the past two years, and instructed her to report for a Fitness
for Duty (FFD) examination, which was held on May 13, 1997. The clinical
psychologist who conducted the FFD examination concluded that complainant
met the standards for psychological approval for the ability to work
safely, �subject to the constraints of no hazardous duties and no duties
that affect plant or personnel safety.� In contrast, on May 9, 1997,
complainant's psychiatrist informed complainant that she was making
slow progress, that her medications were only moderately effective,
and that she needed continued therapy with sessions every two weeks.
During September or October 1997, following a reorganization,
complainant and all Clerk-Word Processors, were transferred from the
Plant's Operations section to the Business Office to work under the
Acting Business Manager. On October 22, 1997, at her psychiatrist's
suggestion, complainant asked the Acting Business Manager if she could
work two to three days per week. According to complainant, the Acting
Business Manager thought it was a good idea, but the Production Manager
denied this request. On December 12, 1997, the Production Manager again
requested a FFD examination for complainant. She was again conditionally
approved for duty, provided that she performed no hazardous duties and
no duties that affect safety. On January 28, 1998, complainant received
a Marginal/Improvement Needed rating on her Employee Service Report
(performance appraisal), for the period October 1, 1996, to September
30, 1997. The comments from the Production Manager were as follows:
[Complainant's] work performance during the rating period was
significantly impacted by her continued unavailability for work. During a
meeting with [complainant] on May 15, 1997, her continued unavailability
for work and the need to significantly improve was discussed.
A subsequent medical evaluation provided no explanation and therefore
no suggested resolution to the behavior exhibited. [Complainant's]
availability for work has not improved and continues to impact the
overall efficiency and effectiveness of the Unit Production organization
and other plant organizations.
Complainant was referred for a third FFD examination on July 1, 1998, and
received conditional approval, as long as she wore adequate corrective
eyewear. On October 28, 1998, under the Acting Business Manager,
complainant received a performance rating of Fully Adequate.
Complainant sought EEO counseling and subsequently filed a formal
complaint on June 19, 1998, alleging that she was discriminated against
on the basis of disability (alleged impairments of depression and bipolar
disorder), in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. when:
From 1994 through 1998, the agency denied complainant's requests for
a flexible work schedule;
On January 28, 1998, complainant received a Marginal/Improvement Needed
rating on her Employee Service Report;
In May 1997 complainant was denied the opportunity to be cross-trained;
and,
Beginning in February 1994 and continuing, complainant was subjected to a
hostile work environment when: (a) derogatory comments were made about
her in 1994 when she had to take off from work due to medical problems;
(b) between October 1995 and February 1996, the Production Supervisor
told employees throughout the plant that he was going to �run her off�
and refused to give her the support she needed to perform her job; (c)
she was not informed in February 1996 that her FMLA leave request was
approved; rather, she discovered that it had been approved later when
she requested sick leave; (d) the agency refused to renovate her office
and provide updated office equipment and computer software in 1996; and,
(e) on January 29, 1998, she was told that she would be terminated if
she returned to work with medical restrictions.<8>
At the conclusion of the investigation, 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 that the agency issue a final decision.
In its decision, the agency concluded that complainant did not raise a
claim of harassment; rather, she stated a claim of disparate treatment and
denial of reasonable accommodation. The agency found that complainant
did not establish a prima facie case of discrimination on the basis of
disability. The agency concluded that complainant was not an individual
with a disability, as she produced no evidence that her conditions
substantially impaired any major life activity. The agency further found,
even assuming that complainant was an individual with a disability, that
she was not a qualified individual with a disability because she needed
a flexible work schedule, not an alternate work schedule. Moreover,
the agency contended that complainant failed to show that consistent
attendance at work and performing her assignments in a timely manner
were not essential duties of her position. Following a fitness for duty
(FFD) examination, the agency's clinical psychologist concluded that
complainant's illness did not prevent her from working a full work week.
The agency argued that it did not discriminate against complainant when
it denied her reasonable accommodation request because complainant's
position required her to be present between 7:00 a.m. and 3:30 p.m.,
and a flexible work schedule would have required overtime payments.
Additionally, no one working under the Production Manager, complainant's
second-line supervisor, had a flexible work schedule. With regard to the
marginal performance appraisal for fiscal year 1997, the agency argued
that although her performance was satisfactory when she was at work, due
to her frequent absences, her performance was unsatisfactory. The agency
concluded that while it articulated legitimate, non-discriminatory reasons
for its actions, complainant did not show that the agency discriminated
against her by a preponderance of the evidence.
On appeal, complainant describes how she qualifies as an individual
with a disability. Additionally, complainant maintains that other
employees throughout the plant were allowed to have flexible schedules.
In response, the agency re-emphasizes that complainant is not an
individual with a disability, as she never identified any major life
activity in which she was significantly limited, there were no limitations
placed on her by her personal physician, and no significant limitations
placed on her following the agency's three FFD examinations. The agency
further argues, even assuming that complainant was an individual with
a disability, that she was not a qualified individual with a disability
because she was unavailable for work an a regular basis. Moreover, the
agency maintains that complainant failed to show that she was harassed
in any way. The agency requests that we affirm its decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), the decision on an appeal from
an agency's final decision is based on a de novo standard of review.
We find that the denial of complainant's request for a flexible work
schedule is more appropriately characterized as a claim of denial of
reasonable accommodation, rather than as a claim of harassment, although
we do find that complainant raised a claim of harassment regarding
the other incidents described in claim 4. The denial of the requested
reasonable accommodation and the marginal performance appraisal that
complainant received are both tied to the issue of her attendance.
Claim 1: Reasonable Accommodation and Flexible Work Schedule
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. See 29
C.F.R. � 1630.9. The employee must show a nexus between the disabling
condition and the requested accommodation. See Hampton v. United States
Postal Service, EEOC Appeal No. 01986308 (July 31, 2002).
In a case of disability discrimination under a failure to accommodate
theory, the complainant must first establish that she is an �individual
with a disability� within the meaning of the Rehabilitation Act.
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).<9> Examples of emotional or mental
impairments include major depression, bipolar disorder, anxiety disorders,
schizophrenia, and personality disorders. EEOC Enforcement Guidance
on the Americans with Disabilities Act and Psychiatric Disabilities,
No. 915.002, at 2-3 (March 25, 1997). 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. See Appendix to Part 1630, Section
1630.2(i), Major Life Activities. The Commission has also identified
mental and emotional processes such as thinking, concentrating,
and interacting with others as examples of major life activities.
EEOC Compliance Manual, Vol. 2, Definition of the Term �Disability,�
Major Life Activities, Section 902.3 (March 14, 1995) (Compliance Manual).
An impairment is substantially limiting when it prevents an individual
from performing a major life activity or when it significantly
restricts the condition, manner or duration under which an individual
can perform a major life activity, compared to the average person
in the general population. 29 C.F.R. � 1630.2(j). The following
factors should be considered in determining whether an impairment is
substantially limiting: (1) the nature and severity of the impairment;
(2) the duration or expected duration of the impairment; and (3) the
permanent or long-term impact, or the expected permanent or long-term
impact of or resulting from the impairment. 29 C.F.R. � 1630.2(j)(2).
In addition, whether a person is substantially limited in a major life
activity must be determined with reference to any mitigating measures,
both positive and negative. See Sutton v. United Airlines, 527 U.S. 471,
482 (1999). �[S]ome chronic conditions may constitute substantially
limiting impairments. . . . [E]pisodic disorder, which remit and
then intensify . . . fall into this category.� Compliance Manual,
Substantially Limits, Section 902.4.
We will assume, arguendo, that complainant is an individual with
a disability. After establishing that she is an individual with a
disability, however, complainant must still show that she is a �qualified�
individual with a disability within the meaning of 29 C.F.R. � 1630.2(m).
A �qualified individual with a disability� is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
The agency must provide reasonable accommodations for known physical
or mental limitations of an otherwise qualified individual with a
disability, unless the accommodation would impose a undue hardship.
See 29 C.F.R. � 1630.9(a). In the context of providing an accommodation,
undue hardship means significant difficulty or expense incurred by
the agency. 29 C.F.R. � 1630.2(p)(1).
The agency denied complainant's request for a flexible work schedule.
The agency argues, even assuming that complainant is an individual with a
disability, she is not a qualified individual with a disability, because
regular attendance is an essential function of the job. According to the
Production Manager, between July 1996 through October 1997, the period
in which he directly supervised complainant, complainant was absent from
work approximately 20% of the time.
The Commission's regulations contemplate the creation of an accommodation
through �[m]odifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired is
customarily performed, that [would] enable a qualified individual with
a disability to perform the essential functions of that position.� 29
C.F.R. � 1630.2(o)(1). A modified work schedule is a type of reasonable
accommodation contemplated by the Commission's regulations. 29 C.F.R. �
1630.2(o)(2). A modified work schedule may involve adjustment to arrival
or departure times, periodic breaks, altering when certain functions are
performed, or providing additional unpaid leave. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, EEOC No. 915.002 (Revised Oct. 17,
2002) at question 22 (�Reasonable Accommodation Guidance�).
We find that the agency did not violate the Rehabilitation Act when
it denied complainant's requests for a flexible work schedule between
1994 and 1998. First, a reasonable accommodation must be effective.
See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (cited in Wiley
v. United States Postal Service, EEOC Appeal No. 07A20105 (September
15, 2003), req. for reconsideration denied, EEOC Request No. 05A40147
(December 11, 2003)). It is unclear exactly what kind of flexible
schedule complainant sought, as complainant does not request any a
specific schedule, other than one that would allow her to work when she
was able, �intermittently or consecutive[ly] as necessary.� An attempt by
the Production Supervisor of the HED, who took over the Business Office,
shows that even if complainant's requests for that type of flexible work
schedule had been granted, her problems regarding attendance and keeping
up with her workload would not have been resolved. In his affidavit the
Production Supervisor explains that he �made her a slot to work at, at her
own pace, and time to where she wouldn't . . . be felt pressured down.�
He testifies that complainant �was coming in late and staying late, and
she did real well. She kept her eight hours real well, and that went on
a couple of weeks or so and then it sort of filtered off. She started
missing again.� Second, a reasonable accommodation must be reasonable
on its face, i.e., plausible or feasible. See id. at 401-02. The record
indicates that the only accommodation that would have been effective would
be one that would have allowed complainant to report to work whenever she
felt able; however, such an accommodation is not reasonable on its face.
See Wiley, EEOC Appeal No. 07A20105, req. for reconsideration denied, EEOC
Request No. 05A40147. The Production Manager stated in his affidavit that
a number of employees had to do complainant's work during her absence,
and �her unavailability for work severely impacted the efficiency of
the organization.� The Production Supervisor stated that complainant's
absences were �really interrupting the business.� The Acting Business
Manager stated that due to complainant's frequent absences, complainant
had to be given work without deadlines, and that she could never be given
work assignments with the expectation that they would be completed on any
particular date. As stated in Wiley, �It is not �plausible' or �feasible'
for an employer to excuse chronic erratic absenteeism and tardiness
by an employee who cannot provide timely notice sufficient to enable
the employer to ensure adequate staffing.� EEOC Appeal No. 07A20105,
req. for reconsideration denied, EEOC Request No. 05A40147. Therefore,
the Commission concludes that complainant is not a qualified individual
with a disability, and that she did not establish that the agency failed
to provide a reasonable accommodation for her alleged disability.
Claim 2: Disparate Treatment and Employee Service Report
As referenced above, complainant also claims that the agency discriminated
against her when she received a Marginal/Improvement Needed rating on
her Employee Service Report for the period October 1, 1996, to September
30, 1997. The Production Manager testifies in his affidavit, and states
on the performance appraisal, that he gave complainant a marginal rating
because of her �unavailability for work,� although he states that she
performed satisfactorily when she was at work. The agency takes the
position that complainant's absences were not related to any disability.
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. Id. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978); Heyman v. Queens Village Comm. for Mental Health
for Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999)
(analyzing a disparate treatment claim under the Rehabilitation Act).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). The burden of persuasion, by a preponderance of the
evidence, remains at all times on complainant. Burdine, 450 U.S. at 256.
To establish a prima facie case of discrimination on the basis of
disability under a disparate treatment analysis, complainant must
demonstrate that: (1) she is a qualified individual with a disability;
(2) she was subjected to an adverse employment action; and (3) the
circumstances surrounding the adverse action give rise to an inference
of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th
Cir. 2001).
As described above, complainant failed to show that she is a qualified
individual with a disability, and therefore cannot establish a prima
facie case. Even assuming, however, that complainant established a
prima facie case, we find that the agency articulated a legitimate,
nondiscriminatory reason for giving complainant a Marginal/Improvement
Needed rating on her Employee Service Report for the period October 1,
1996, to September 30, 1997; namely, her excessive, unplanned absences
affected her ability to complete her work, and her performance evaluation
reflected that fact. The Commission finds that complainant failed to
rebut the agency's explanation, and failed to establish discrimination on
the basis of disability by a preponderance of the evidence with respect
to the marginal performance evaluation.
Claim 3: Disparate Treatment and Cross-Training
Complainant also claims that in May 1997 she was discriminated against
on the basis of disability when she was denied the opportunity to be
cross-trained in order to gain varied work experiences that were provided
to other employees. Again, complainant failed to show that she is a
qualified individual with a disability. She has also not demonstrated
that denial of training gives rise to an inference of discrimination.
Complainant has provided no connection between being denied this training
and her alleged disability. Since complainant has not met her burden to
establish a prima facie case, we need not reach the issues of whether
the agency established a legitimate, nondiscriminatory reason for its
actions or whether complainant was able to establish discrimination on
this issue by a preponderance of the evidence.
Claim 4: Harassment
Complainant also claims that she was subjected to harassment on the
basis of disability when: (a) derogatory comments were made about her
in 1994 when she had to take off from work due to medical problems;
(b) between October 1995 and February 1996, the Production Supervisor
told employees throughout the plant that he was going to �run her off�
and refused to give her the support she needed to perform her job; (c)
she was not informed in February 1996 that her FMLA leave request was
approved; rather, she discovered that it had been approved later when
she requested sick leave; (d) the agency refused to renovate her office
and provide updated office equipment and computer software in 1996; and,
(e) on January 29, 1998, she was told that she would be terminated if
she returned to work with medical restrictions.
In order to establish a claim of hostile environment harassment, a
complainant must show: (1) she is a member of a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. See Soto v. U.S. Postal Service,
EEOC Appeal No. 01994396 (March 14, 2002).
To determine whether complainant has set forth an actionable claim of
harassment, the conduct at issue must be viewed in the context of the
totality of the circumstances, considering the nature and frequency
of offensive encounters and the span of time over which the encounters
occurred. See Cobb v. Department of the Treasury, Request No. 05970077
(March 13, 1997). The Supreme Court emphasized in Faragher v. City
of Boca Raton, that ��simple teasing,' offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory
changes in the 'terms and conditions of employment.'" 524 U.S. 775, 788
(1998). The Court noted that such conduct must be both objectively and
subjectively offensive, such that a reasonable person would find it to
be hostile or abusive, and that the victim perceived the environment
to be hostile and abusive. Id. at 787. We find that the record does
not support that the alleged incidents of harassment actually occurred
or that the conduct complained of herein was sufficiently severe or
pervasive to have altered complainant's employment and created an abusive
working environment.
CONCLUSION
After a careful review of the record, including arguments and evidence
not specifically discussed in this decision, the Commission affirms the
agency's final decision.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 29, 2004
__________________
Date
1The record is unclear as to whether
complainant is currently employed by the agency. In her affidavit,
dated September 24, 1998, complainant indicates that her psychiatrist
was �holding [her] off permanent.�
2Mania is characterized by an exaggerated feeling of well-being,
stimulation, and grandiosity in which a person can lose touch with
reality. Depression is characterized by overwhelming feelings of sadness,
anxiety, and low self-worth, which can include suicidal thoughts and
suicide attempts.
3Hypersomnia is characterized by recurrent episodes of excessive daytime
sleepiness or prolonged nighttime sleep. Persons with hypersomnia are
compelled to nap repeatedly during the day, often at inappropriate times
such as at work, during a meal, or in conversation.
4Hyperphagia is characterized by excessive ingestion of food beyond
that needed for basic energy requirements; eating may be obligatory and
disrupt normal activity.
5Anergia is lack of energy or inactivity.
6Anhedonia is reduced or complete inability to feel pleasure from
activities that usually produce happiness.
7The Production Manager was selected to that position in December
1997. From July 1996 until that time, he served as the Operations
Superintendent. For the sake of clarity, we will refer to this management
official as the Production Manager throughout the decision. Additionally,
the record does not contain the exact dates for some of complainant's
requests for a flexible work schedule.
8Complainant's additional claim that she was denied reclassification from
Clerk-Word Processor, SB-3, to Clerk-Word Processor, SB-4, was dismissed
by the agency for untimely EEO Counselor contact, and affirmed by the
Commission's Office of Federal Operations, pursuant to 29 C.F.R. �
1614.107(a)(2). See Silvestri v. Tennessee Valley Authority, EEOC
Appeal No 01986086 (July 21, 1999), req. for reconsideration denied, EEOC
Request No. 05990990 (November 5, 1999). In that decision the Commission
also found that complainant's harassment claim must be considered in its
entirety, from 1994 and beyond, rather than from 1996, because complainant
may be entitled to remedies other than backpay. See id. We note that in
response to complainant's appeal, the agency states that the Commission
upheld the agency's acceptance of the harassment issue only from 1996.
That statement is erroneous. Complainant's claim of harassment will be
considered from 1994 onward.
9An individual �has a record� of an impairment if he or she has a
history of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life activities.
See 29 C.F.R. � 1630.2(k). An individual is �regarded as having� an
impairment if he or she (1) has a physical or mental impairment that
does not substantially limit major life activities but is treated by an
agency as constituting such a limitation; (2) has a physical or mental
impairment that substantially limits major life activities only as a
result of the attitudes of others toward such impairment; or (3) does
not have a physical or mental impairment, but is treated by an agency
as having a substantially limiting impairment. See 29 C.F.R. � 1630.2(l).