Virginia L. Carney, Complainant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency

Equal Employment Opportunity CommissionAug 3, 2000
01986113 (E.E.O.C. Aug. 3, 2000)

01986113

08-03-2000

Virginia L. Carney, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency


Virginia L. Carney v. Federal Deposit Insurance Corporation

01986113

August 3, 2000

Virginia L. Carney, )

Complainant, )

) Appeal No. 01986113

v. ) Agency No. FDIC-9613

)

Donna A. Tanoue, )

Chairman, )

Federal Deposit Insurance Corporation, )

Agency )

)

DECISION

INTRODUCTION

Complainant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning her

complaints of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et

seq, and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,

et seq.. <1> Accordingly, the appeal is accepted in accordance with 64

Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency discriminated against

complainant on the bases of mental disability (severe depression and

anxiety), and reprisal ( prior EEO complaint<2>) when the agency issued

her an Advance Notice of Proposed Termination (the Notice) for both

continued absence without leave (AWOL) and failure to report for duty

when directed to do so; and, on October 16, 1995, notified complainant

that she would be terminated (the Termination) for failure to notify

management of reasons for her absence.<3>

BACKGROUND

Complainant was a legal technician hired in July 1986, under a one-year,

temporary appointment. She was re-appointed at the expiration of each

one-year term. Complainant contacted an EEO counselor on July 26, 1995,

claiming that the agency discriminated against her when on June 30, 1995,

she was issued the Notice; and on October 17, 1995, she was issued the

Termination, effective October 20, 1995.<4>

Complainant averred that in 1994, she was depressed because of age

discrimination<5> she suffered at the agency, began seeing a therapist,

and notified her section chief (the Chief) of her depression. Complainant

stated that her doctor admitted her to a psychiatric institute (the

Institute) in July 1995.

The record indicates that complainant last reported to work on May 11,

1995, and was on approved sick leave from May 12, through May 22, 1995.

On May 23 and 24, 1995, she left a voice-mail message for the Chief

stating that she was ill, would be seeing a doctor and having tests

performed. On May 31, 1995, complainant's supervisor left a phone

message at complainant's home, and on June 1, 1995, the Chief telephoned

complainant's daughter and left a message with her for complainant.

On June 1, 1995, the Senior Administrative Assistant received a letter

from complainant dated May 25, 1995, postmarked May 30, 1995, stating

that complainant informed the Chief that she would be out on sick leave

for an indefinite period of time. Enclosed was a hand-written letter

from the doctor on plain white paper stating, �This is to inform you that

[complainant] is currently under my care.� On June 2, 1995, complainant

left a second voice-mail message for the Chief indicating her displeasure

at the call to her daughter, and stating that her doctor sent a letter,

that she was at home taking care of herself, and that she would be out

indefinitely.

The Chief then sent complainant a letter on June 2, 1995, via overnight

express, informing her that the medical documentation received was

unacceptable and that such documentation should bear a physician's

letterhead and indicate the length of time presently anticipated for

treatment and recuperation. The Chief informed complainant that,

as of May 24, 1995, she had 15 hours of sick leave, and that because

she did not have enough to cover the additional four days that she was

out, her absence was charged to annual leave. The Chief stated that

she wanted to discuss with complainant any request for advanced sick

leave, leave without pay, and participation in the leave donor program.

On June 6, 1995, the Chief sent a second letter, via overnight express,

stating that although complainant left three telephone messages she had

not described the nature of her illness. The Chief requested a detailed

medical statement, and informed complainant that her absence was not

properly approved and that she would be placed on absent without leave

(AWOL) status beginning June 12, 1995. On June 14, 1995, the Chief sent

a third letter, via overnight express, directing complainant to report

to work on June 19, 1995, and notifying her that failure to report to

work would lead to a recommendation of termination.

Complainant averred that on June 12, 1995, she filed a claim for short

term disability benefits (the Forms) and sent the Forms to the Chief on

June 20, 1995, asking her to complete her portion. The Forms contained

the doctor's statement that complainant suffered from major depression and

anxiety, and was on medication. The Chief received a copy of a memorandum

dated July 11, 1995, from the Senior Administrative Assistant requesting

that she properly complete her portion of complainant's Forms.<6>

On June 19, 1995, the doctor phoned the Chief and identified herself as

a psychiatrist treating complainant. The doctor stated that complainant

would need an additional three to four weeks of treatment before returning

to work. The Chief discussed the necessity of obtaining a medical

certificate. The doctor stated that she would send a letter by the end

of the week. None was received. The Chief telephoned the doctor's

office on June 26, 1995 and left a message but received no response.

On June 30, 1995, the agency issued complainant the Notice for cause,

citing her continued absence without leave and her failure to report to

work when directed to do so.

The doctor sent a letter dated July 4, 1995, to the Chief stating that she

examined complainant on May 26, 1995, and diagnosed depression.<7> The

doctor stated that she briefly hospitalized complainant then discharged

her to a partial hospital program where she anticipated complainant

would remain for at least one month. The doctor stated that she was

unable to anticipate when complainant would be able to return to work

and whether any modifications would be needed.

In a July 11, 1995, letter the Case Manager at the Institute advised

the Chief that complainant was undergoing treatment for depression,

was unable to work, and, in the opinion of the treatment team, would

be ready to consider returning to work in about six to eight weeks.<8>

Complainant did not return to work. On October 16, 1995, the agency

notified complainant that her temporary employment would be terminated

effective October 20, 1995, for failure to appraise management of reasons

for her absence.

By letter dated October 17, 1995, complainant's attorney advised the

Chief that complainant was receiving short term disability payments.

The Chief replied by letter dated October 18, 1995, informing the

attorney that complainant was being terminated because of her continued

failure to directly contact management.<9> The attorney then contacted

the agency's legal department. Senior Counsel in the legal department

rescinded the termination letter and requested that complainant's AWOL

status be changed retroactively to LWOP.

Complainant claimed that the Chief made no attempt to discover the nature

and extent of her disability, and did not attempt to formulate a plan

for her return to work. She stated that the Notice and Termination were

improper because the agency knew of her condition through her doctor's

letters and her application for disability benefits.

Thereafter, the agency issued a final decision finding that complainant

failed to establish a prima facie case of discrimination based on denial

of reasonable accommodation because she failed to show that she had

a permanent mental disability that substantially limited a major life

activity, and that, as of June 30, 1995, she provided no documentation to

the agency regarding any impairment rising to the level of substantially

limiting a major life function. The agency noted that the doctor failed

to send authenticated documentation, and that the doctor's July 4, 1995,

letter stated only that she could not anticipate when complainant could

return to work or whether modifications would be needed. The agency

found that the July 11, 1995, letter from the Case Manager stated only

that complainant was being treated for depression and would be ready to

consider returning to work in six to eight weeks. The agency also found

that complainant failed to establish a prima facie case of discrimination

based on reprisal because seventeen months lapsed between the time she

filed a prior complaint and the instant action. The agency stated that

complainant was not removed from the agency, that her term appointment

expired in May 1996, and that she failed to apply for an extension or

a new Legal Technician position.

In her appeal, complainant states that she suffered a nervous breakdown as

a result of the retaliation she endured after filing an EEO complainant in

1994, that her manager in 1994, was aware that she was seeing a doctor

for mental problems and knew she took a long leave in December 1994,

because of her panic attacks. She states that in 1995, her doctor sent a

letter when she was on leave for the stress and panic advising the agency

that she was too ill to work.<10> She states that she was heavily sedated

for depression and panic attacks, had difficulty breathing, concentrating

and communicating, and suffered panic attacks and post traumatic stress

with each letter she received from the agency. She also claims that

she suffered heart palpitations, trembling, shaking, dizziness, blurred

vision, feelings of unreality and detachment. Complainant argues that

her doctor communicated with the Chief by phone and letter, and that she

requested a reasonable accommodation through her doctors. Complainant

states that a therapist at the Institute tried unsuccessfully to get the

Chief to work with the rehabilitation job counselor at the Institute.

Complainant further claims that for the past four years she has been

unable to work and has been under the care of doctors. She states that

she is unable to communicate in a normal way, has a loss of memory,

shakiness, and often lives with her family because she cannot care for

herself.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R � 1630.9(a) an agency is required to make

reasonable accommodations for the known physical or mental limitations

of an otherwise qualified applicant or employee with a disability,

unless the agency can demonstrate that the accommodation would impose

an undue hardship on the operation of its business. To bring a claim

of disability discrimination, complainant must first establish that

she has a disability within the meaning of the Rehabilitation Act.<11>

Cook v. United States Postal Service, EEOC Request No. 05960015 (June

21, 1996) (to merit the protection of the Rehabilitation Act, it is not

enough to have a particular medical condition that carries the potential

for substantial limitations).

To establish a prima facie case of disability discrimination under

a disparate treatment and/or a failure to accommodate theory, the

complainant must demonstrate that: 1) she is an �individual with

a disability� as defined in 29 C.F.R. � 1630.2(g); 2) she is a

�qualified individual with a disability� as defined in 29 C.F.R. �

1630.2(m); and (3) she was subjected to an adverse personnel action under

circumstances giving rise to an inference of disability discrimination

and/or denied an accommodation. See Prewitt v. United States Postal

Service, 662 F.2d 292 (5th Cir. 1981).

EEOC Regulation 29 C.F.R. � 1630.2(g) defines an individual with a

disability as one who: 1) has a physical or mental impairment that

substantially limits one or more of that person's major life activities,

2) has a record of such impairment, or 3) is regarded as having such an

impairment. EEOC Regulation 29 C.F.R. � 1630.2(h)(2)(i) defines "major

life activities" as including the functions of caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.

Complainant also must show that she is a "qualified" individual with a

disability within the meaning of 29 C.F.R. � 1630.2(m). That section

defines a qualified individual with a disability as meaning, with

respect to employment, a disabled person who, with or without reasonable

accommodation, can perform the essential functions of the position in

question.

The Commission finds that complainant has a permanent disability that is

substantially limiting. Our review of the record discloses information

which clearly describes complainant's condition and how it impaired

her and substantially limited major life activities including caring

for herself and breathing during panic attacks. Specifically, we note

the letters from complainant's doctor and Case Manager, and the doctor's

and complainant's description in the application for disability benefits

listing her depression,, inability to concentrate, memory impairment,

panic attacks, anxiety, insomnia and lack of appetite. These statements

are sufficient to demonstrate that complainant was disabled in one or

more major life activities, including that of caring for herself and

breathing.

The Commission finds that complainant was not, however, a qualified

individual within the meaning of the regulations because the record

indicates that, even with an accommodation of LWOP, complainant could not

perform the duties of her job. Medical documentation and complainant's

statements indicate that for an extended duration she was unable to

perform the duties of her position. She states in her appeal that she

has not worked in the past four years and may never be able to work.

The agency made numerous attempts to communicate with complainant by

phone and letter between May 31, and June 30, 1995, to ascertain the

nature of complainant's illness, the length of time she would be on

leave, and whether she wished to participate in the Donor Leave Program.

Complainant stated that any communication from the agency caused her to

experience great stress and panic attacks. Complainant's doctor informed

the agency on June 11, 1995, that complainant could possibly return

in three to four weeks. A month later, the case manager informed the

agency that complainant would need daily medical care for another six to

eight weeks. By October 16, 1995, neither complainant nor her medical

care-givers gave any indication that she could return to her duties.

The Commission therefore finds that complainant could not perform

the essential functions of her position with or without a reasonable

accommodation, and is not a qualified individual within the meaning of

the regulations. See Williams v. United States Postal Service, EEOC

Request No. 01971683 (January 19, 1999) (Complainant was found not to be

a qualified individual with a disability because there was no showing,

after an extended absence, that at any time in the foreseeable future

he could perform the essential functions of his position.)

In order to establish a prima facie case of discrimination for an

allegation of reprisal, complainant must show: 1) that she engaged

in protected activity, e.g., participated in n EEO proceeding; 2)

that the alleged discriminating official was aware of the protected

activity; 3) that she was disadvantaged by an action of the agency

contemporaneously with or subsequent to such participation; and 4)

that there is a causal connection between the protected activity and

the adverse employment action. Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,

545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d

80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

The record shows that complainant engaged in protected activity when

she filed an EEO complainant in May 1994. The record does not indicate

whether the Chief was aware of that activity because the Chief failed to

provide any statement. The Commission, therefore, will assume that the

Chief was aware of complainant's prior protected activity. Complainant

stated that the adverse actions occurred while her prior complaint was

pending; thus a causal connection exists based on closeness in time.

We find, however, that complainant failed to show that the agency's

articulated reasons for its actions were a pretext for discrimination

based on reprisal. Complainant last reported to work on May 11, 1995.

Complainant's doctor failed to provide authenticated medical documentation

as requested. On July 4, 1995, the doctor notified the Chief that

complainant would remain in day treatment for at least one month and

that she could not anticipate when complainant could return to work.

The Case Manager wrote on July 11, 1995, that complainant could consider

returning to work in six to eight weeks. The agency received no further

information throughout September and October 1995, until complainant's

attorney responded on October 17, 1995, to the termination notice.

The agency then rescinded the termination notice. The agency's actions

were based on complainant's prolonged absence and a lack of appripriate

documentation regarding the nature of her illness and her ability to

return to work. Therefore, the agency's determination that complainant

failed to establish that the agency retaliated against her or that its

actions were based on discriminatory animus was correct.

Accordingly, the decision of the agency was proper and is AFFIRMED.

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 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

August 3, 2000 ______________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

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.

2 Complainant filed an EEO complaint in May 1994.

3 Following contact from complainant's lawyer, the agency rescinded

the Termination and changed complainant's absence-without leave (AWOL)

status to leave-without-pay (LWOP).

4 In her formal complaint, complainant included several incidents

occurring between July 1994, and April 1995, which the agency dismissed in

its final decision of March 19, 1997, for untimely EEO counselor contact.

Complainant did not appeal this decision. Therefore, the Commission

will not address those claims.

5 Complainant's claim relates to issues dismissed by the agency for

untimely EEO counselor contact as noted above.

6 On June 20, 1995, the agency's Disability Plan Administrator notified

complainant that, based on medical documentation submitted by her

attending physician, benefits were approved beginning June 22, 1995.

7 The doctor described complainant's condition as an inability to

concentrate, insomnia, decreased energy, decreased appetite with weight

less, loss of interest in previously pleasurable activities, memory

impairment, a sense of hopelessness, panic attacks and nightmares.

The stationary contained no letterhead.

8 The letter was on stationary containing the Institute's letterhead.

9 The agency's sick leave policy requires communication from either the

employee or an employee's representative.

10 The manager who supervised complainant until the Spring of 1995,

averred that he was unaware that complainant had a disability, and

that shortly before complainant's absence, she told him that she was

going to visit friends. He stated that he was aware that the managers

who supervised complainant during the Spring and Summer of 1995 put

considerable effort into locating her.

11 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. 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.