Michele A. Bean, Petitioner,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionAug 16, 2002
03A20065 (E.E.O.C. Aug. 16, 2002)

03A20065

08-16-2002

Michele A. Bean, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Michele A. Bean v. Department of the Air Force

03A20065

August 16, 2002

.

Michele A. Bean,

Petitioner,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Petition No. 03A20065

MSPB No. AT0752010329I1

DECISION

On May 2, 2002, 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 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

Petitioner, a Child Development Program Leader at an agency facility

in Hulbert Field, Florida alleged that she was discriminated against

on the basis of disability (anxiety disorder, panic disorder, major

depressive disorder) when she was denied a reasonable accommodation

and removed from her position. On January 25, 2001, petitioner filed

a mixed case appeal with the MSPB. After denying petitioner's request

for a hearing due to the failure of petitioner's attorney to comply with

his orders, the Administrative Judge found that the agency established

that petitioner was medically unable to perform her job and sustained

the agency's removal action. The AJ also determined that petitioner

did not prove that she was subjected to disability-based discrimination,

noting that she failed to establish that she could perform the essential

functions of her position with or without an accommodation and therefore

was not a qualified individual with a disability. The Board denied

petitioner's petition for review.

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. 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).

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to concur with the final decision

of the MSPB finding no discrimination. 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.

In so finding, we note that petitioner failed to prove that she was an

individual with a disability at the time of her request for a reasonable

accommodation. The record establishes that petitioner had worked for

approximately 19 years as a Child Development Program Leader assigned to

the Infant Section. On March 6, 2000, her supervisor (S1) notified her

that she would be reassigned to the Toddler Section. Petitioner became

very upset at the prospect of this reassignment, went out on sick leave

the following day, and was hospitalized on two subsequent occasions

between March 7, 2000 and April 5, 2000 due to problems she was having

in coping with the potential reassignment.

On March 28, 2000, S1 received a letter from petitioner's doctors

asking that petitioner's impairment be accommodated by allowing her to

continue to work in the Infant Section. In response to this request, when

petitioner returned to work on April 5, 2000, S1 temporarily reassigned

petitioner to duties which did not involve contact with children

and scheduled petitioner for a fitness for duty exam. The doctor who

performed the fitness for duty exam determined that complainant was not

medically qualified for her position as a Child Care Development Leader

and, on December 1, 2000, the agency therefore notified complainant of

her proposed removal.

On appeal to this Commission, petitioner argues that it was the agency's

failure to grant her March 28, 2000 reasonable accommodation request

that led to the worsening of her condition and her eventual removal.

Under the Commission's regulations, an agency is required to make

reasonable accommodation to the known physical and mental limitations

of a qualified individual with a disability unless the agency can show

that accommodation would cause an undue hardship. 29 C.F.R. � 1630.2(o);

29 C.F.R. � 1630.2(p).<1> In the case at hand, however, petitioner

failed to establish that she was an individual with a disability within

the meaning of the Rehabilitation Act at the relevant time.

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). Other major life activities include thinking,

concentrating, interacting with others, caring for oneself, and sleeping.

See EEOC Enforcement Guidance on the Americans with Disabilities Act

and Psychiatric Disabilities, March 25, 1997, at question 3.

Here, complainant did not establish that she was substantially limited in

any major life activity when she requested a reasonable accommodation.

In a joint letter dated March 28, 2000, petitioner's psychiatrist

and psychologist noted that petitioner was suffering from several

psychiatric disorders which �appear to have developed primarily due to

[her] anticipatory anxiety concerning the possibility of major changes

in her work assignment.� This letter noted that if petitioner's medical

needs were not accommodated by allowing her to continue to work with the

specific population with which she felt most comfortable, she �could

become medically disabled on a long-term basis due to work-related

stress.� In a subsequent letter dated August 7, 2000, petitioner's

doctors noted that petitioner had developed many signs of Post Traumatic

Stress Disorder (PTSD), including, among other things, difficulties

sleeping and concentrating, and feelings of estrangement from others.

From this medical evidence, it appears that petitioner's impairment

affected her ability to perform the major life activities of sleeping,

concentrating, interacting with others, and working.

Petitioner must prove, however, that her impairment substantially limits

a major life activity. To be substantially limited an individual must be

unable to perform a major life activity or significantly restricted as to

the condition, manner, or duration under which he or she can perform that

activity as compared to the average person in the population. See 29

C.F.R. � 1630.2(j)(1). Here, petitioner's doctors merely indicated

that petitioner had developed many signs of PTSD, and listed a number

of examples. Petitioner provided no information as to the frequency

or severity of her sleeping and concentrating difficulties, nor did

she provide any details to describe how her feelings of �estrangement

from others� affected her. She therefore failed to provide sufficient

evidence to establish that she is significantly restricted in the major

life activities of sleeping, concentrating, interacting with others,

or any other major life activity.

Furthermore, petitioner failed to prove that she is substantially

limited in the major life activity of working.<2> In order to do so,

a petitioner must show that she is unable to perform or significantly

restricted in her 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, petitioner alleged

that because of her impairment, she was unable to work as a child care

developer with toddlers, and that after August 7, 2000, she was unable

to work under the supervision of S1 or in a similar position at a nearby

Air Force Base due to her fears of S1's influence over individuals who

worked there. It appears, then, that petitioner was unable to work in

a position with ties to a particular individual (S1) and unable to work

with children above a certain age. Neither of these limitations restrict

petitioner in her ability to perform a class of jobs or a broad range of

jobs in various classes. Accordingly, we find that petitioner failed to

establish that she was substantially limited in any major life activity

at any time prior to her proposed removal on December 1, 2000.

Finally, we find that petitioner did not establish that she was regarded

as having an impairment that substantially limited a major life activity

or that she had a record of such an impairment. In so finding, we

note that although the agency determined that petitioner was medically

unqualified for her position as a Child Care Development Leader, there is

no evidence that it regarded her as unable to perform or significantly

restricted in her ability to perform a major life activity. At most,

the agency regarded petitioner as unable to work in her current position

or a position at a nearby Child Development Center. Similarly, although

the record establishes that petitioner was briefly hospitalized in March

2000 due to her extreme reaction to the news of her reassignment, there

is no evidence that she has a record of an impairment that substantially

limited a major life activity.

As petitioner failed to establish that she was an individual with

a disability at the relevant time, the agency's failure to provide

her with a reasonable accommodation in response to her March 28, 2000

request and subsequent decision to propose her removal did not violate

the Rehabilitation Act.

In response to the proposed removal, petitioner submitted a letter from

her doctors, dated December 5, 2000, which states that petitioner was

�currently totally disabled from any gainful employment.� The agency

subsequently removed petitioner, effective January 17, 2001, relying on

the results of the fitness for duty exam, as well as petitioner's own

doctors' letter indicating that she was totally disabled from gainful

employment. To the extent that the December 5, 2000 letter suggests that

petitioner was, as of December 5, 2000, substantially limited in the major

life activity of working and therefore an individual with a disability,

we note that she was not a qualified individual with a disability at

this point. To be a qualified individual with a disability, one must

be able to perform the essential functions of the position she holds or

desires with or without an accommodation. See 29 C.F.R. � 1630.2(m).

After December 5, 2000, petitioner herself acknowledged that she is

unable to work in any position.

Accordingly, after a careful review of the record, including arguments

and evidence not specifically discussed in this decision, we hereby

CONCUR with the MSPB's determination that petitioner was not subjected

to disability-based discrimination.

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

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

August 16, 2002

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to petitioner, petitioner's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The 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.

2 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 Appendix to 29 Part 1630 - Interpretive Guidance on

Title I of the Americans with Disabilities Act, 1630.2(j); Boyle v. United

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