Camile J. Gonzy, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01972012 (E.E.O.C. Feb. 4, 2000)

01972012

02-04-2000

Camile J. Gonzy, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration Agency.


Camile J. Gonzy v. Social Security Administration

01972012

February 4, 2000

.

Camile J. Gonzy,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration

Agency.

Appeal No. 01972012

Agency No. 950534

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) concerning her complaint of unlawful employment

discrimination in violation of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791, et seq.<1> Complainant claims that

she was discriminated against when the agency refused to provide

her with a reasonable accommodation for her temporomandibular joint

(TMJ) disorder. The appeal is accepted in accordance with EEOC Order

No. 960.001. For the reasons that follow, the Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was

employed as a Contact Representative at the agency's Valrico Branch

Office. Complainant claims that she is severely disabled due to her TMJ

condition, which required surgery in May 1994, February 1995, and June

1995. She argues that the agency failed to provide her with a reasonable

accommodation by refusing to extend the post-surgical accommodations

it provided to her, and by denying her request to be given the duty

assignment of a co-worker. Complainant also contends that the Operations

Supervisor (OS) who was responsible for processing her request, treated

her in an extremely hostile manner, made multiple, duplicative, and

unnecessary demands upon her physician for medical verification, and

struck her with a door when she tried to explain that her physician had

grown very annoyed at these frequent requests.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on August 11, 1995. At

the conclusion of the investigation, the agency issued its FAD, finding

no discrimination. Complainant now appeals this determination, arguing

that the investigator was biased and the investigation was inadequate

for failing to include her "like and related" claims regarding the

slow processing of her Office of Workers Compensation Programs (OWCP)

claims.<2>

In its FAD and on appeal, the agency contends that complainant failed to

establish a prima facie of disability discrimination, arguing that the

medical evidence shows that complainant's TMJ disorder is temporary

in nature so that she is not an individual with a "disability,"

as defined by the Rehabilitation Act (Act), and not entitled to the

protections afforded by the Act.<3> Additionally, as noted in its FAD,

the agency also contends that complainant's request for an extension of

the post-surgical TMJ accommodations was not denied, and that the agency

was merely requesting further medical verification consistent with its

policy regarding the processing of reasonable accommodation requests. We

concur with the agency's determination.

By regulation, the federal government is charged with becoming "a model

employer" of individuals with disabilities. This goal was expressed

by Congress when it enacted the Rehabilitation Act.<4> Bradley

v. U.S. Postal Service, EEOC Appeal No. 01962747 (October 22, 1998)

(citing Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985); Prewitt, 662

F.2d. at 301.) Federal agencies must make reasonable accommodation for the

known physical and mental limitations of a qualified disabled employee,

unless the agency can demonstrate that accommodation would prove to be an

"undue hardship." See 29 C.F.R. 1630.2(o) and (p).

To establish a prima facie case of discrimination based on a failure to

accommodate a disability, complainant must first establish that she is

an "individual with a disability." An "individual with a disability"

is defined as 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. Major life activities include activities such as caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working. 29 C.F.R. 1630.2(i). The factors

which the Commission recognizes as determining whether an impairment

substantially limits a major life activity include the duration of

the impairment, the severity of the impairment, and its permanent or

long-term impact. See Minehan v. Department of the Army, EEOC Petition

No. 03970092 (November 12, 1997); Terrangnoli v. Department of the Army,

EEOC Appeal No. 01942810 (October 2, 1995).

Review of the many statements from complainant's physician, submitted

subsequent to each of the three surgical procedures, verifies that

she had a complicated course of recovery each time, with significant

post-surgical pain and discomfort, and the need for rest and restrictions,

physical therapy, medications, and possible additional surgery. The

physician declined to provide a date for full recovery given these

complications. However, it is clear from each of these statements

that complainant's physician anticipated that she would, in fact,

make a recovery, and that it was merely a question of when this might

occur. After the June 1995 surgery, the physician issued a statement,

dated July 24, 1995, indicating that complainant's pain would be treated

with either conservative measures or possibly additional surgery, if

necessary. None of the statements suggests that these post-surgical

symptoms would be permanent.

A temporary impairment of this nature, although significant during

the initial post-surgical recovery period, does not rise to the

level of a substantial limitation within the meaning of the Act. See

EEOC Compliance Manual at 902-33 (March 14, 1995). Accordingly, we

concur with the agency that complainant is not an "individual with

a disability" and therefore did not establish a prima facie case of

disability discrimination. Moreover, we find that the agency provided

complainant with post-surgical accommodations, and was in the process

of considering her request for an extension, when she and OS had an

altercation concerning the need for additional medical information,

resulting in the instant complaint. We find that the fact that the

agency was engaging in the process of considering complainant's request

for a reasonable accommodation belies a finding of discriminatory

animus. Although complainant argues that OS's requests for additional

medical information were designed to antagonize her, we find that the

requests were reasonable given complainant's prolonged and complicated

course of treatment and recovery.

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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 [PAGE 5] 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

February 4, 2000

__________________

Date

1On 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.

2After carefully reviewing the record, we find no evidence of investigator

bias. Moreover, we find that the record of evidence before us is adequate,

and that the scope of the investigation was properly limited to the issue

accepted by the agency. The record confirms that complainant received

notice of the issue that was accepted for investigation, and that she

did not object or request inclusion of her OWCP claims in response to

this notice.

3We note that the agency has acknowledged that complainant has

other disabilities, unrelated to her TMJ disorder, and has provided

accommodations for these disabilities. The instant case is limited to a

determination of whether complainant is "disabled" by her TMJ disorder

within the meaning of the Rehabilitation Act.

4The 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: WWW.EEOC.GOV.