Dennis C. Reitman, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 6, 2003
01A10628 (E.E.O.C. Mar. 6, 2003)

01A10628

03-06-2003

Dennis C. Reitman, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Dennis C. Reitman v. Department of the Air Force

01A10628

March 6, 2003

.

Dennis C. Reitman,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A10628

Agency No. LE1C99002

Hearing No. 120-AO-3066x

DECISION

Dennis C. Reitman (complainant) timely initiated an appeal from the

agency's final order concerning his equal employment opportunity (EEO)

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 following reasons, the Commission AFFIRMS the agency's

final order.

The record reveals that complainant, a Computer Assistant Supervisor

at the agency's Langley Air Force Base in Virginia, filed a formal EEO

complaint on February 10, 1999, alleging that the agency had discriminated

against him on the basis of disability (sleep disorder, stress disorder,

gastrointestinal problems, migraines) when, on December 8, 1998, the

agency refused to allow him to work a straight day shift, which he had

requested as a reasonable accommodation.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that complainant failed to establish that he is an

individual with a disability within the meaning of the Rehabilitation Act.

In so finding, the AJ noted that complainant submitted documentation

from his doctors which indicates that complainant has a sleep disorder,

migraines and gastrointestinal problems, but failed to produce evidence

sufficient to establish that any of these impairments substantially

limit a major life activity. The AJ noted that complainant's doctors

stated that complainant should not be on rotating shifts, but failed to

describe whether and to what extent complainant's impairments interfered

with his functioning in relation to a major life activity.

The AJ went on to find that the agency made a good faith effort to

accommodate complainant by allowing him to work the day shift and the

swing shift, but eliminating the �mid� shift requirement.<1> The AJ

also noted that complainant himself sent electronic mail messages to

his supervisors demanding the right to work all three shifts, thereby

acknowledging that he did not need an accommodation.

The AJ concluded that, even when considering the evidence in the light

most favorable to complainant, complainant failed to establish that he

was subjected to disability-based discrimination. The agency's final

order implemented the AJ's decision.

On appeal, complainant restates arguments previously made before the AJ.

He also contends that the AJ's decision contains numerous errors.

Complainant argues, among other things, that the agency's doctor never

asked him for a medical release and that had he been asked, he would

have provided one. He argues that the AJ misunderstood the electronic

mails she referenced in support of her finding that he did not need

an accommodation. He contends that he did not intend to indicate

in these messages that he did not need an accommodation, but rather

was attempting to emphasize that his request for an accommodation had

not been officially approved or disapproved He argues that his sleep

disorder is a disability in that sleep is a major life activity and

that the deprivation of sleep harms all other major life activities.

Finally, he argues that the agency failed to respond properly to his

requests for reasonable accommodation.

In response, the agency restates the position it took in its FAD and in

its Motion for Findings of Fact and Conclusions of Law Without a Hearing,

and requests that we affirm its final order.

After a careful review of the record, the Commission finds that the grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. Complainant failed to establish that he is an individual

with a disability within the meaning of the Rehabilitation Act.<2> 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, sleeping, learning,

and working. 29 C.F.R. � 1630.2(i); see also EEOC Enforcement Guidance

on the Americans with Disabilities Act and Psychiatric Disabilities

(Psychiatric Guidance), No. 915.002 (March 25, 1997).

The determination as to whether an individual has an impairment

that substantially limits a major life activity is made on a case by

case basis. See Bragdon v. Abbot, 524 U.S. 624 (1998); Interpretive

Guidance on Title I of the Americans with Disabilities Act, Appendix to

29 C.F.R. 1630 (Interpretive Guidance) at 1630.2(j). 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, as compared to the average person in the general population.

See Interpretive Guidance, 1630.2(j).

In the case at hand, complainant submitted evidence which establishes

that he suffers from a sleep disorder, migraines and gastrointestinal

problems and that his doctors recommended that he remain on the day

shift due to these impairments. Complainant did not, however, provide

evidence sufficient to prove that any of his impairments prevent him

from performing a major life activity or significantly restrict his

ability to perform a major life activity. Although complainant correctly

notes that sleeping is a major life activity, and provided information

indicating that he has a diagnosed sleep disorder and difficulty

sleeping, evidence that an individual has some trouble getting to sleep

or occasionally sleeps fitfully does not establish that the individual

is substantially limited. See Psychiatric Guidance, fn. 16. Similarly,

although complainant noted that his migraine headaches occasionally make

his vision blurry, he provided no details as to the frequency of this

occurrence, nor any other information to establish that his ability to

see is substantially limited.

Although complainant also argued that he is substantially limited in the

major life activity of working, he provided no evidence to support this

contention.<3> In order to establish that he is substantially limited

in working, a complainant must establish he is unable to perform or

significantly restricted in his 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, complainant

provided no evidence to indicate that he is restricted in this manner.

Instead, he simply argued that he is unable to work rotating shifts

and must remain on the day shift due to his impairments. Accordingly,

we find that complainant failed to establish that has an impairment

which substantially limited a major life activity. Nor did complainant

establish that he has a record of such an impairment or was regarded by

the agency as having such an impairment.

Complainant contends on appeal that he could have provided more medical

documentation if the agency had requested a medical release. The record

establishes, however, that the AJ requested that complainant state with

specificity in his Prehearing Statement what his impairments are and �the

specific limitations imposed on [him] as a result of each impairment.�

Accordingly, even assuming the agency led complainant to believe that

he had provided sufficient medical documentation, he was given an

opportunity before the AJ to provide documentation to establish that

he is an individual with a disability. In response to the AJ's order,

complainant submitted a Prehearing Statement in which he stated that

his �physical disabilities affect a major life function including his

ability to work and sleep,� but provided no further facts specifying

how these major life activities were limited.<4>

Accordingly, even construing the evidence in the light most favorable

to complainant, he failed to establish that he is an individual with

a disability within the meaning of the Rehabilitation Act. The AJ's

issuance of a decision without a hearing was therefore appropriate and the

agency's final order implementing the AJ's finding of no discrimination

is AFFIRMED.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

March 6, 2003

Date

1 The �mid� shift refers to the 11 p.m. to 7 a.m. shift.

2The 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.

3 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 Interpretive Guidance, 1630.2(j); Boyle v. United

States Postal Service, EEOC Appeal No. 01980819 (August 16, 2001).

4 Although complainant contends that the agency failed to engage

properly in the interactive process, we note that an employee who is

not an individual with a disability is not entitled to a reasonable

accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation

and Undue Hardship Under the Americans with Disabilities Act (March 1,

1999), at question 1 (�In some instances, before addressing the merits

of an accommodation request, employer must determine if an individual's

medical condition meets the definition of �disability,' a prerequisite

for the individual to be entitled to a reasonable accommodation�).