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.