Complainant with glaucoma and diabetes found not to be "disabled" within meaning of act because record failed to contain evidence that either condition substantially limited him in a major life activity. "The record does not contain any documentation, other than petitioner's assertions, establishing that these impairments affect a major life activity or explain that he was incapacitated from work based on them. While a letter from his eye doctor attests to his glaucoma, it does not explain how the glaucoma or the prescribed treatment substantially limited a major life activity. We find therefore that there is insufficient evidence to conclude that petitioner is disabled as a result of his diabetes and glaucoma."

Mail handler had several light duty assignments in late 1995, running for 3 to 6 month intervals, based on documentation from different treating physicians describing her as suffering from low back strain. Typical restriction prevented her from working more than 10 hours a day, 6 days a week, lifting over 70 pounds, or repeated bending stooping, or operating a motor vehicle crane or tractor. A second fitness for duty exam disclosed that one of her legs was actually about 1.5 to 2 centimeters shorter than the other, and that with the use of a heel lift, her lower back pain was significantly reduced. Held, she had impairments of back pain and "shortness of one leg of 1.5 - 2 cm," but these impairments, in combination with the above-described restrictions "even if accepted as permanent, do not constitute a substantial limitation on a major life activity. Also the complainant has taken the measure of using a heel lift to mitigate the impairment of her shorter leg." citing Sutton. 

Complainant who had OWCP rating of 5 percent disability in his upper right extremity (shoulder) was held not to be "disabled" within the meaning of the Act. In general terms, his shoulder began hurting when he played tennis or racquetball, but following orthroscopic surgery it improved somewhat. Thereafter, he occasionally experienced stiffness or minor pain. It didn't help his case that in spite of his ostensible "disability," he worked as a physical fitness instructor. The Commission, citing the ADA regulations at 29 CFR 1630.2, quoted the definitions of "substantially limits," "Major Life Activities," and the "Factors to be considered" when determining whether a person is substantially impaired in any major life activity, and held complainant failed to meet any of them. (This case also has a good discussion about how disability findings of other agencies such as OWCP or VA may be "some evidence" of a disabling condition, but how they are by no means dispositive.) 

Citing ADA regulations, Commission found complainant failed to show he had a disability. Only record evidence was VA rating denying claims for service connected lung condition and rash "and a 10% evaluation based on multiple, noncompensable, service-connected disabilities; and found that the complainant had service connected right shoulder glenoid dysplasia with no "0%" disability . . . and no "0%" disabling bilateral hearing loss. . . . The complainant did not testify to any limitations."

Commission upheld agency FAD of no discrimination when agency dismissed letter carrier for stealing items from the mail. Complainant, who had been caught with stolen mail in his home and thereafter fired, claimed to have been suffering from a mental disorder at the time. "He argued that the agency should not have a policy mandating that a person be automatically removed or forced to resign in a situation such as his. Since he had over 1500 hours of sick leave, complainant felt that he should have been given a chance to seek medical assistance." A psychologist, who first saw complainant three weeks after he was caught with stolen mail, opined that complainant "appears to suffer a long-term disorder characterized by avoidance of close personal relationships and difficulty working in close proximity to other people. Under stress, he would have little access to the kinds of coping skills most people utilize in such situations, such as seeking support from other people." The doctor diagnosed him with Adjustment Disorder with depressed mood, and an Avoidant Personality Disorder, concluding that on the day he was caught complainant's "thinking and behavior were most probably to some degree impaired due to the disorders . . . ." The Commission, citing Sutton and the ADA regulations, found insufficient evidence to support a conclusion that complainant was substantially limited in any major life activity, holding that the "most probably to some degree impaired" language the doctor used did not rise to the level of substantially limiting. Further, the Commission held, merely having a record of an impairment (in this case a mental impairment) does not rise to the level of having a record of a disability, unless that record evinces the person was substantially limited in a major life activity. Lastly, this case also lays out the now well accepted notion that "[t]he Americans with Disabilities Act does not preclude an agency from enforcing standards of conduct, as long as such standards are job-related, consistent with business necessity, and enforced uniformly among all employees." 

Complainant, who had taken several months of sick leave for an Acute Stress Disorder, failed to report to work on the date the documentation provided by his doctor said he'd be able to return. His supervisor informed him that if he was going to be out past the date on which his doctor had previously indicated he'd be able to return to work, he was required to provide additional medical documentation. Complainant neither returned to work nor provided additional documentation. He claimed numerous bases of discrimination, including disability. He claimed his work assignments aggravated leg and shoulder injuries he'd received about 20 years earlier (shortening and curvature of right leg and shoulder dislocation) disfigurement, and neurological pain and damage. He claimed he had a 10% service connected disability rating, but did not submit medical documentation supporting his claim. The MSPB AJ followed the ADA regulations and found insufficient evidence to support a finding complainant was "disabled" based on the "actual disability," "regarded as having a disability" or "having a record of a disability" definitions of the term. Additionally the AJ found "there was no evidence establishing whether the mental impairment . . . was temporary or transitory or whether it was amenable to treatment." The EEOC upheld MSPB decision.

Complainant alleged agency regarded him as disabled due to his obesity. "However, complainant . . . identified neither any major life activity in which the agency believes him to be substantially impaired, or any range or class of jobs from which the agency believes him to be excluded. See e.g., Sutton. . . . The record reflects that the total extent of the complainant's limitation as far as the agency was concerned, was that complainant weighed too much to use the rappelling device and lanyard to perform the required safety jump for him to qualify for a Hybrid Crane Operator's license because his weight exceeded the 300 pound limit for the device."
 
 

Complainant, a 10% disabled Veteran, alleged his removal pursuant to RIF was improper and actually the product of disability discrimination. Commission, citing ADA regulations and Sutton noted "that petitioner's mere status as a 'service-disabled veteran' does not, in and of itself, confer upon him protected status under any law administered by the Commission. . . . The file contains no information with respect to petitioner's alleged disability. There is no information about any kind of condition, let alone whether petitioner is substantially limited in any major life activity." 

Commission held complainant, who claimed to be disabled as a result of being legally blind, suffering from gout, and suffering from depression, was not disabled under the Sutton analysis. His vision was fully correctable with eyeglasses. There was "no evidence explaining whether and to what extent [gout] limits any identifiable major life activity. With regard to the condition of depression, complainant submitted evidence from his physician in which the diagnosed condition is actually identified as 'adjustment disorder with anxious and depressed features' which 'mildly affected his concentration and level of stress. . . . [His physician noted] I believe the condition to be mild and I do not believe it is likely to have any significant impact on his functioning in his current situation.' The physician noted that the drug Zoloft, which complainant takes, has various side effects, but did not state that complainant was experiencing any of them. The physician stated, rather, that side effects from the medication were 'quite rare' and noted that the medication should not interfere with complainant's job performance."

Complainant who alleged he suffered from diabetes was found not to be disabled within meaning of the Act. Whereas complainant claimed to suffer from diabetes, written statements he'd made when taking a qualification physical (denied having any impairments generally, and diabetes specifically) defeated his claims in that regard. The Commission found no evidence in file on which to base a finding of disability. Note, as an interesting aside in case, the Commission reveals its unmistakable disfavor of blanket policies being applied to individuals with disabilities. Notwithstanding complainant's general statement in his affidavit that he never requested accommodation of his alleged disability, we recognize that a request for approval to use leave for an absence caused by a disability is an implicit request that the absence not be used to support a disciplinary action, and thus may constitute a request for accommodation. McNeil v. United States Postal Service, EEOC Appeal No. 05960436 (July 28, 1998). To the extent the Postmaster asserts in his affidavit that "all employees must be regular in attendance regardless of any handicapping conditions," this statement fails to recognize the agency's obligation to accommodate certain absences of a qualified individual with a disability where no undue hardship is posed. Id.; see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, No. 915.002 (March 1, 1999). The agency should review such obligations accordingly with its management officials, including those who handled the instant situation. Nevertheless, with respect to the instant claim, because complainant has not established that he is an individual with a disability, we do not reach the issue of whether the agency failed to accommodate him."

Complainant failed to show her mental impairment (panic disorder) rose to the level of a disability because "[t]he documentation in the investigative record fails to establish that, at the time in question, complainant's panic disorder substantially limited her in any major life activity." Note, although not controlling the case, the Commission pointed out an error in the agency's analysis. Specifically, as documentation in support of her request for accommodation, complainant submitted a letter from a Licensed Clinical Social Worker describing complainant's panic disorder. The agency advised the complainant that such requests had to be supported by documentation from "medical doctors rather than a social worker. The EEOC, citing question 6 of the EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA No. 915.002 (March 1, 1999), said the only requirement was that such documentation be from an "appropriate health care professional" and that there was no requirement to have a medical doctor provide the documentation. 

Complainant claimed disability discrimination insofar as she was not selected for a promotion. Several of her supervisors and coworkers testified they were unaware she suffered from diabetes or that she had a heart condition. Complainant challenged their testimony, pointing out that she had worked in close proximity to some of them for nearly 20 years. She testified that some of them undoubtedly had seen her test her blood while at her desk. The commission found "[e]xclusive of complainant's own testimony, our review of the record reveals that it is devoid of any evidence, medical or otherwise, describing complainant's claimed disabilities." Instead of finding she failed to show she had a disability, as it had done in several of the other cases referenced in this handout, the Commission ordered the agency to conduct additional investigation, during which it was to locate medical documentation etc.

Commission considered case of left arm amputee who had been found to be totally disabled by OWCP and was requested to return to work in modified mail handler position. After a month back at work in the modified position, complainant requested certain accommodations. The case is noteworthy in that despite the nature of complainant's impairment, the commission, holding true to the guidance found in Sutton, found "the record insufficient in establishing that complainant was a qualified individual with a disability within the meaning of the Rehabilitation Act. While the record indicates that complainant suffers from a physical impairment (left arm amputee), the record is devoid of specific information regarding whether complainant's physical impairment substantially limits one or more life functions, taking into account the negative and positive effects of any mitigating measures utilized by complainant, such as a prosthetic device." 

Commission found disability where complainant had record of left carpal tunnel syndrome and left distal ulnar neuropathy. The record specifically articulated physical restrictions, such as a restriction from lifting or carrying more than 10 pounds, from reaching above shoulder height, and from twisting both forearms. The record also demonstrated that those restrictions had been in place for at least two years prior to the actions giving rise to the case. The complainant also alleged she was mentally disabled by stress. However, she "did not describe the manifestations of her alleged mental stress condition in any detail, nor submit medical evidence to support she had a mental condition which substantially limited a major life activity. Further, the record does not show that the complainant had a record of such a disability or was regarded as having such by the agency. Accordingly, the complainant failed to establish that her mental stress condition constituted a disability."

Commission found the agency improperly failed to accommodate complainant by ignoring her request to take leave on a day she said she was "not feeling well . . . in a terrible frame of mind." Complainant had been diagnosed with manic depression years earlier, and the station manager where she worked knew of her condition. The case just looked bad from the agency's perspective. Complainant had a diagnosed mental impairment for which she took medication; she told her immediate supervisors she needed a day off specifically because of her impairment (and certain factors aggravating that impairment), and they simply ignored her request. Furthermore, at the hearing, the station manager testified that on the day she was acting irrationally and violently (reason for her termination) she should have simply asked to go home. (He was obviously unaware that she'd made just such a request, and that her request was ignored.) In the end analysis, the Commission really stretched in order to find the complainant was a qualified individual with a disability, but once having done that, it had no problem finding the agency failed to accommodate her. 
 
 

MSPB CASES 
Applying Sutton, Murphy, and Kirkingburg
 
 

The Board sustained an arbitrator's award denying a grievance based on the arbitrator's determination that "although the appellant suffered from a disabling mental impairment, the impairment did not substantially limit a major life activity." Agency demoted appellant from her GS-11 Claims Representative position to a GS-8 Contact Representative position, asserting that due to a 1994 on-the-job injury, the appellant suffered from PTSD and major depression which rendered her unable to perform an essential function of the position, namely, face-to-face interviews with the public. Board held the arbitrator properly considered the "medication the appellant was taking in finding that her impairment did not substantially limit a major life activity" under Sutton and Murphy. [There is an interesting discussion in the case referencing a split in judicial opinions over which party, employee or employer, bears the burden of establishing the "essential functions" of a disputed position. The case doesn't turn on this issue, but it may be persuasive if the same issue arises in other cases in the future.] 

The Board granted agency's petition for review of adverse ruling and Dismissed appellant's appeal. Appellant was a WG-4 Store Worker who alleged the agency had constructively discharged her from her position. The Administrative Judge found the appellant sustained her burden of proving disability discrimination. For purposes of the disability analysis, the Board essentially considered whether the agency's refusal to allow her to return to work in a light duty position following back and shoulder injuries amounted to a failure to accommodate her disability (back and shoulder impairments). The Board found appellant was not a qualified individual with a disability. "An agency is not obligated to accommodate a disabled employee by permanently assigning her to light duty tasks when those tasks do not comprise a complete and separate position. . . . Thus, because with or without reasonable accommodation she could not perform the essential functions of her position, the appellant has not shown that the agency was bound by the Rehabilitation Act to accommodate her medical condition." [Note, this case also contains a good discussion about light duty as a reasonable accommodation.]
 
 

The Board granted the agency's petition for review and reversed Administrative Judge's finding of disability discrimination. Appellant, a GS-12 Civil Engineer, was removed after unsatisfactory performance during a performance improvement plan (PIP). The AJ found "that appellant suffered from a 'mental disability,' namely depression" but that the agency did not regard him as having a mental impairment that substantially limited a major life activity. With regard to the whether the appellant was "actually" impaired the Board found the AJ did not state what, if any, major life activity may have been substantially limited by the appellant's asserted mental impairment. [The Board didn't use the term "actually," but that's the terminology the Supreme Court uses in Sutton to describe the class of people who are considered to be disabled - those with physical or mental impairments that substantially limit a major life activity.] Additionally, the Board concluded "It is not enough to show that the agency regarded the appellant as foreclosed form a particular job; the agency must regard the impairment as substantially limiting employment generally. . . . Although the agency clearly believed the appellant was not performing satisfactorily in his position of record when it initiated the PIP, the evidence does not show that it knew of his alleged depression, let alone that it regarded the asserted mental condition as foreclosing generally the type of employment at issue." (citations omitted). Restated, if an employee cannot demonstrate his employer knew about his impairment/disability, it's axiomatic that he cannot succeed on an argument that the employer regarded him as disabled.