Karen M. Arnold, Petitioner,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 18, 2000
03a00091 (E.E.O.C. Sep. 18, 2000)

03a00091

09-18-2000

Karen M. Arnold, Petitioner, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Karen M. Arnold v. Department of the Treasury

03A00091

September 18, 2000

.

Karen M. Arnold,

Petitioner,

v.

Lawrence H. Summers,

Secretary,

Department of the Treasury,

Agency.

Petition No. 03A00091

MSPB No. CH-0752-00-0104-I-1

DECISION

On April 24, 2000, 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, as amended, 29 U.S.C. � 791 et seq.<1> Petitioner, a Logistics

Management Specialist at an agency facility in Indianapolis, Indiana,

was removed from her position based on a charge that she was absent

without leave (AWOL). On November 1, 1999, petitioner filed a mixed case

appeal with the MSPB. After a hearing, the Administrative Judge (AJ)

found that petitioner's removal was within the limits of reasonableness

and was not motivated by discrimination.

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.<2> 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).

Petitioner, a fourteen-year employee of the agency who had exhausted

both her sick and annual leave balances, was continuously absent from

March 15, 1999 through July 17, 1999. The agency placed her in AWOL

status and proposed her removal, effective October 4, 1999. Petitioner

contends that, by failing to proffer her a reasonable accommodation, the

agency discriminated against her on the basis of her mental disability,

diagnosed in May 1996 as "adjustment disorder with depressed mood" and

supplemented by a diagnosis in April 1999 of "chronic post traumatic

stress disorder." Petitioner submitted two notes from her personal

physician: one dated March 11, 1999 stating that petitioner was under

his care for "medical reasons" and was totally incapacitated and one

dated March 23, 1999 again stating that petitioner was under his care for

"medical reasons." In April 1999, petitioner submitted a statement from

her psychologist asserting that the majority of petitioner's emotional

stress was work-centered and that if "numerous changes" were not made

to her work situation, her condition would worsen. Neither petitioner

nor her psychologist provided any further medical evidence in spite of

the agency's request that they do so.

At the hearing, petitioner testified that she experienced depression

and anxiety attacks; that in February 1999 her stomach and her head

hurt; that the antidepressant medication prescribed for her "put her

in a fog and like a depressed state" so she did not regularly take it;

that sometimes she could not sleep or eat anything and then at other

times she would eat "everything" and then vomit; and that providing a

deposition to the agency in relation to a unconnected EEO lawsuit placed

her under significant stress in early 1999. She denied having trouble

working, thinking or communicating with others, and she testified,

without explanation for her failure to do so, that she felt well enough

to return to work in May 1999.

Petitioner's treating physician testified that he saw petitioner on

March 1, 1999 for an "upset stomach & her sinus" and again on April 12,

1999 for an "upset stomach." Her physician admitted that he did not

examine petitioner in connection with the above referenced notes but

based his statement regarding her "total incapacitation" on his March

1, 1999 examination. Petitioner's psychologist was disqualified as a

witness at the hearing because of his refusal to provide the agency with

current medical records.

As a threshold matter, petitioner must establish that she is a

�qualified 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).

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). A "qualified"

individual with a disability is one who satisfies the requirements for

the employment position he holds or desires and can perform the essential

functions of that position with or without reasonable accommodation.

29 C.F.R. � 1630.2(m).

The determination as to whether an individual has an impairment which

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

basis. Bragdon v. Abbott, 524 U.S. 624 (1998); 29 C.F.R. pt. 1630,

App. � 1630.2(j). In the instant case, the evidence does not establish

that complainant has a mental impairment which substantially limits a

major life activity. In reaching this conclusion, we note petitioner's

testimony that she did not have difficulty working, thinking or

communicating with others. We are not persuaded that because she at

times had difficulty sleeping that her depression substantially limited

her from getting sufficient sleep as compared to the average person

in the general population. See 29 C.F.R. � 1630.2 (j). Moreover,

petitioner's refusal to submit adequate medical documentation of her

condition severely undermines her credibility.<3>

The Commission notes that the AJ also found that the agency's decision

to remove petitioner was not motivated by retaliatory animus towards her

prior protected activity. Upon review, we agree with the AJ that even

assuming petitioner set forth a prima facie case of retaliation, the

preponderance of the evidence establishes that petitioner's failure to

report to work for approximately four calendar months without sufficient

explanation was the real reason for her removal.

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.

For the foregoing reasons, it is the decision of the Commission to CONCUR

with the final decision of the MSPB finding no discrimination.

PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)

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

September 18, 2000

__________________

Date

1 The 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. These regulations

can be found on EEOC's website at www.eeoc.gov.

2 On 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 29 C.F.R. Part 1614 where applicable, in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.

3 Both parties are advised that the Commission has issued guidance

concerning the scope of disability-related inquiries and medical

examinations of employees. While an employer may ask an individual

for reasonable documentation about his/her disability and functional

limitations, an employer may require only the documentation that is

needed to establish that the alleged impairment substantially limits

a major life activity. See the following EEOC Enforcement Guidances:

Preemployment Disability-Related Questions and Medical Examinations

(October 10, 1995); The Americans with Disabilities Act and Psychiatric

Disabilities (March 25, 1997); Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act (March 1, 1999);

and Disability-Related Inquiries and Medical Examinations Of Employees

Under the Americans with Disabilities Act (July 27, 2000).