Marcella Baker, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01a34036 (E.E.O.C. Nov. 24, 2004)

01a34036

11-24-2004

Marcella Baker, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Marcella Baker v. Department of Veterans Affairs

01A34036

November 24, 2004

.

Marcella Baker,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A34036

Agency No. 200P-2613

Hearing No. 350-A1-8328X

DECISION

Complainant timely initiated an appeal from the agency's final

order concerning her 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 Physician Assistant, Senior Grade,

at the agency's Ambulatory Care/Diamond Clinic in Phoenix, Arizona, filed

a formal EEO complaint on December 5, 2000, which was later amended in

March and May 2001. In her formal complaint, complainant alleged that

the agency had discriminated against her on the basis of her disability

(Coccidiomycosis) when: (1) she was given a rating of �satisfactory� on

her annual proficiency report on October 10, 2000, and (2) management

did not promote her to the Chief Grade in October 1999 or October 2000.

Complainant also alleged she was subjected to a hostile work environment

on the bases of disability and reprisal for prior protected EEO activity

when:

on September 21, 2000, one of complainant's co-workers responded to

an email informing the staff that complainant would be out on leave

with the comment, �So if I whine, then I can get my workload reduced!

Perhaps the point would be better made this way, if one shows up on time,

does their work and does not try to dump their work on someone else,

then we would not have this issue. You know the things that most of

us learned in first grade.�

on October 10, 2000, another of complainant's co-workers arrived late

for work and stated �Well, I'm being Marcie Baker today.�

On December 26, 2000, complainant became aware that her light duty

request for a schedule reduction was not granted;

on March 1, 2001, complainant's supervisor stated �I haven't felt

comfortable signing some of the e-mails you sent me.�

on March 5, 2001, complainant received a memorandum indicating that

her leave usage was excessive, and that further evidence of excessive

leave usage would result in disciplinary action.

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 even taking the facts in the light most favorable

to complainant, no genuine issue of material fact exists. The AJ further

concluded that complainant failed to establish a prima facie case of

disability discrimination, as she failed to show that she is an individual

with a disability under the Rehabilitation Act. Specifically, the AJ

found that complainant failed to show that her impairment substantially

limits any of her major life activities.

The agency's final order implemented the AJ's decision. Additionally, the

agency issued a finding of no discrimination on the basis of reprisal

because the AJ failed to address this allegation in the decision

without a hearing. On appeal, complainant contends that the AJ erred

in finding that she is not an individual with a disability under the

Rehabilitation Act. Complainant also contends that the record was not

sufficiently developed to allow a decision to be made on the merits of

her complaint.<1>

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission. 29

C.F.R. � 1614.405(a). The Commission's regulations allow an AJ to issue

a decision without a hearing when she finds that there is no genuine

issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is

patterned after the summary judgment procedure set forth in Rule 56 of

the Federal Rules of Civil Procedure. The U.S. Supreme Court has held

that summary judgment is appropriate where a court determines that, given

the substantive legal and evidentiary standards that apply to the case,

there exists no genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary

judgment, a court's function is not to weigh the evidence but rather

to determine whether there are genuine issues for trial. Id. at 249.

The evidence of the non-moving party must be believed at the summary

judgment stage and all justifiable inferences must be drawn in the

non-moving party's favor. Id. at 255. An issue of fact is �genuine� if

the evidence is such that a reasonable fact finder could find in favor of

the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);

Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).

A fact is �material� if it has the potential to affect the outcome

of the case. If a case can only be resolved by weighing conflicting

evidence, a hearing is required. In the context of an administrative

proceeding, an AJ may properly consider issuing a decision without a

hearing only upon a determination that the record has been adequately

developed for such disposition. See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003).

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

appropriately issued a decision without a hearing, as no genuine dispute

of material fact exists. We further find that, despite complainant's

contentions on appeal, the record is adequately developed to allow a

decision on the merits. We note that in order to establish a prima facie

case of disability discrimination, complainant must establish that she

is a qualified individual with a disability. See Sims v. United States

Postal Service, EEOC Petition No. 03A00033 (Feb. 25, 2000); 29 C.F.R. �

1630.4 (prohibiting discrimination against qualified individuals with

disabilities). A "qualified" individual with a disability satisfies the

requisite skills and experiences for the job, and is capable of performing

the essential functions of the position with or without a reasonable

accommodation. See 29 C.F.R. � 1630.2(m). To prove a prima facie case,

complainant also must show that the agency took adverse action against

her or failed to provide a reasonable accommodation, and must demonstrate

that a causal relationship exists between the agency's reasons for its

actions, and complainant's disability. See Moore v. Department of the

Army, EEOC Request No. 05960093 (October 16, 1998).

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 record of such impairment; or (3) is regarded as

having such an impairment. See 29 C.F.R. � 1630.2(g) (1)-(3). A physical

impairment includes any physiological disorder affecting, inter alia,

neurological, musculoskeletal, and/or endocrine systems. See 29 C.F.R. �

1630.2(h)(1). The impairment must substantially limit complainant,

or significantly restrict her as to the condition, manner, or duration

under which she performs a particular major life activity as compared

with the performance of the average person in the general population. See

29 C.F.R. � 1630.2(j)(1)(ii).

Determinations regarding whether a complainant is an individual

with a disability must be made on a case-by-case basis. See Bragdon

v. Abbott, 524 U.S. 624, 641-642 (1998). In determining whether

complainant suffers a substantial limitation to a major life activity,

the Commission must consider the nature and severity of the impairment,

the duration or expected duration of the impairment, and the permanent

or long-term impact resulting from the impairment. 29 C.F.R. �

1630.2(j)(2)(i)-(iii). Additionally, the effects of any �[mitigating]

measures - both positive and negative - must be taken into account when

judging whether that person is �substantially limited.'� See Sutton

v. United Airlines, 527 U.S. 471, 482 (1999).

Here, we concur with the AJ's finding that complainant failed to establish

a prima facie case of disability discrimination, as she failed to show

that her coccidiomycosis substantially limits any of her major life

activities. The record reflects that in her affidavit, complainant states

that treatment for her condition began in December 1999, and included

the taking of a prescription antifungal medication, x-rays and CT scans.

Complainant further states that while she no longer takes the antifungal

medication, she has an inhaler to use if she has trouble breathing.

Complainant specifically states that �[she] would not say that [she's]

permanently disabled,� but that she does suffer some residual problems of

sensitivity to humidity, dust and wind. Further, complainant denies that

her condition substantially limits any major life activities, and states

that �when [she's] not feeling well, [she has] to do things a little

more slowly and pace [herself], but [she] can do whatever [she needs] to

do.� While complainant avers on appeal that her condition �can be very

debilitating and often fatal,� we find that she has failed to provide

any evidence to rebut her earlier affidavit statements which show that

her coccidiomycosis did not substantially limit any major life activities.

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 (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:

______________________________

Stephen Llewellyn

Acting Executive Officer

Executive Secretariat

November 24, 2004

__________________

Date

1 We note that although the AJ failed to address complainant's allegation

of reprisal discrimination in the decision without a hearing, complainant

did not raise the issue of reprisal discrimination on appeal, and as such,

we need not address that basis in the instant decision.