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.