Betty A. Thompson, Complainant, v. William J. Henderson, Postmaster General, USPS, Agency, 2000 EEOPUB LEXIS 5968, August 31, 2000. Commission found complainant, who as a result of suffering from "plantar fasciitis in her left foot, became unable to perform the functions of a position she originally held and was moved into another position, was not an individual with a disability. The Commission noted "that the complainant’s inability to perform in one particular position does not, by itself, mean that she has a disability. Instead the appropriate question is whether the impairment substantially limits a major life activity. The medical evidence of record reveals that the complainant is unable to walk and/or stand for more than three to four hours at a time and that she cannot lift more than 25 to 30 pounds." Having considered that evidence the Commission concluded that "although the complainant’s impairment affects several major life activities, none of these activities were substantially limited." The Commission therefore concluded that she did not have an actual disability.

Sadettin Batir, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, 2000 EEOPUB LEXIS 5029, July 24, 2000. The Commission found that a postal employee who had a medical condition ostensibly prohibiting him from lifting more than 20 pounds was not a substantially limiting impairment and declined to find he was a person with a disability.

Linda Clapp, Petitioner, v. Richard J. Danzig, Secretary of the Navy, 2001 EEOPUB LEXIS 28, January 8, 2001. In a mixed case appeal, Commission found an electronic technician’s permanent restrictions, which included no overhead cable pulling and no prolonged working with arms overhead, did not substantially limit her in a major life activity. Additionally, the Commission found that these restrictions did not substantially limit her in the major life activity of working since she was not significantly restricted in her ability to perform either a class of jobs or a broad range of jobs as compared to the average person with comparable training, skills and abilities." Finally, although petitioner had numerous medical restrictions imposed as a result of two surgeries she had undergone, the restrictions were temporary pending post-surgery rehabilitation therapy. "A temporary impairment of this nature, even if significant during the initial post-surgical recovery period, which does not result in long term substantial limitation, is not a disability within the meaning of the Act."

Kenneth Vanderford, Petitioner, v. Richard J. Danzig, Secretary, Department of the Navy, Agency, 2000 EEOPUB LEXIS 5970, August 31, 2000. Commission concurred with MSPB’s holding that petitioner failed to establish he had a disability in a case where petitioner had proffered no evidence indicating the severity of his impairments ("hyperkeratosis penetrans of the palmer service of both hands," psychological acute stress disorder") or whether they were temporary in nature.

Randy P. Valencia, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency, 2000 EEOPUB LEXIS 1491, March 16, 2000. Commission found insufficient evidence to conclude petitioner was an individual with a disability, where only evidence consisted of "some documents which indicate that petitioner was seeing a doctor about stress, however, none of them explains how or to what extent his condition adversely affected any of his major life activities." Therefore, held the Commission, "we find insufficient evidence from which to conclude that petitioner's condition substantially impaired one or more of his major life activities so as to render him an "individual with a disability" within the meaning of the Rehabilitation Act."

Ute Baker, Petitioner, v. Lawrence H. Summers, Secretary, Department of the Treasury (U.S. Customs Service), 2000 EEOPUB LEXIS 1987, March 30, 2000. Commission found complainant, whose internist had diagnosed her as suffering from "situational depression" was not "disabled" within the definition of the Rehabilitation Act. "Initially, the Commission questions the reliability of that diagnosis, to the extent the Physician is an internist and because he made the diagnosis without the benefit of any diagnostic tests. Even assuming, however, that the diagnosis was accurate, we find insufficient evidence to conclude that it rises to the level of a disability under the ADA and the Rehabilitation Act. In so finding, we note that, although the condition affected petitioner's ability to sleep, eat, and think, it is not apparent that any of these major life activities were substantially limited." Accordingly the Commission found petitioner had not established that she had an actual disability.

Elton J. Ricks, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency 2000 EEOPUB LEXIS 5913 September 6, 2000. In a mixed case appeal, the Commission concurred with the finding of the MSPB that petitioner was not discriminated against based on disability. After petitioner injured his back in a car accident, and as a result, was unable to perform the duties of his Mailhandler position, the agency thereafter afforded him a series of light duty assignments that were contingent on his submission of medical documentation each month. Although the documentation the complainant initially submitted indicated that his injury was temporary, he eventually submitted a report from his physician indicating that the condition was permanent. Specifically, the report states that the petitioner had "degenerative disc disease of the lumbar spine and frequent paraspinal muscle spasms" that permanently precluded him from either lifting or pushing over 30 pounds. The agency construed this report as a request for a permanent light duty position, and thereafter informed the petitioner that, because no such positions existed that were within his restrictions, his request was denied. The record reveals that the petitioner did not thereafter report for work, and on July 18, 1997, he was placed in an enforced leave status. The Commission found petitioner did not have a disability. "Although the petitioner has been diagnosed with degenerative disc disease, the Commission finds he has not demonstrated that this condition substantially limits a major life activity. In so finding, we conclude that the petitioner's primary limitation, i.e., the inability to lift more than 30 pounds, does not substantially limit his ability to lift. See Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346 (4th Cir. 1996) (25-pound lifting restriction is not substantially limiting); Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311 (8th Cir. 1996).

Jerald Bond, Petitioner, v. Bill Richardson, Secretary, Department of Energy, Agency, 2000 EEOPUB LEXIS 2083, March 28, 2000. In a mixed case appeal, the Commission agreed with the MSPB’s determination that petitioner, who suffered from gastroesophegeal reflux disease (GERD), and whose symptoms of GERD were ameliorated with medication, had not established that his impairment (GERD) constituted a disability under the Rehabilitation Act. "While we agree that GERD is an impairment, petitioner has not shown that any of his major life activities were substantially limited as a result of having this condition."

Lawanda R. Fernelius, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency 2000 EEOPUB LEXIS 4642 June 29, 2000. Denying a complainant’s request for reconsideration, the Commission found that complainant, who suffered from "situational anxiety" and post traumatic stress disorder, failed to demonstrate that her mental impairment substantially limited her in a major life activity, "such as learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working. The only evidence of relevant limitation was the assertion by complainant's personal health care providers that she was under stress, and the agency physician's observation that she was in a "very defensive and agitated state of mind" during the FFD examination. The Commission rejected complainant’s assertion that "working overtime" was a major life activity, and found insufficient evidence in the record to determine that she was substantially limited in the major life activity of working.

2000 EEOPUB LEXIS, January 27, 2000. 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."

2000 EEOPUB LEXIS 228, February 1, 2000. Commission considered the case of a 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."

2000 EEOPUB LEXIS 144, February 3, 2000. 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.

2000 EEOPUB LEXIS 141, February 3, 2000. 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."

2000 EEOPUB LEXIS 477, February 10, 2000. 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."

2000 EEOPUB LEXIS 669, February 17, 2000. 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."

2000 EEOPUB LEXIS 667, February 17, 2000. 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."

Ronald R. Lewis, Petitioner, v. Janet Reno, Attorney General, 2000 EEOPUB LEXIS 665, February 17, 2000. 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 the MSPB decision.

2000 EEOPUB LEXIS 1145, February 25, 2000. 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."

2000 EEOPUB 1142, February 25, 2000. 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 orthoscopic 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.)

2000 EEOPUB LEXIS 960, March 6, 2000. 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.

2000 EEOPUB LEXIS 958, March 6, 2000. 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."

Mary K. Gallagher, Complainant, v. William J. Henderson, Postmaster General, United states Postal Service, Agency, 2000 EEOPUB LEXIS 7418, December 29, 2000. EEOC found agency incorrectly determined complainant was not a qualified individual with a disability. Complainant had been performing duties, with certain physical limitations (lower lumbar strain limiting her ability to lift, push, and pull), in a position for two years. She sought placement in a position with similar duties, but the agency determined she would be unable to perform the essential functions of the position. The Commission, however, note that complainant has successfully performed the position of CFS Automated Mark-Up Clerk -- the same position as the bid position -- on a limited duty basis for two years, and accordingly found that complainant was a "qualified individual with disability" entitled to protection under the Rehabilitation Act.

Kenneth N. Godfrey, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency, 2000 EEOPUB LEXIS 6107 September 11, 2000. In a mixed case appeal, EEOC agreed with MSPB finding that complainant, who suffered from congestive heart failure, essential hypertension, hypertensive cardiovascular disease, bronchospastic disease, morbid obesity, status-post acute renal failure and irregular heart rhythms, was not a "qualified individual" with a disability. Upon observing attendance irregularities, and that complainant was having difficulties in performing his job, the agency conducted a fitness for duty examination. The agency's contract physician who performed the examination indicated that petitioner was capable at that time of only sedentary duties and imposed the following restrictions: no lifting, bending, kneeling, or squatting; sitting for up to eight hours with periods of mobilization every two or three hours; standing for up to eight hours with a provision that he not remain stationary for more than two or three hours at a time; walking on level ground for up to one hour at a time; and avoidance of exposure to temperature extremes, airborne particles, gasses and fumes. With respect to his disability discrimination claim, the AJ found that petitioner, was, at a minimum, regarded as an individual with a disability. The AJ, however, found that petitioner was not a qualified individual with a disability because he failed to articulate a reasonable accommodation that would enable him to perform the essential functions of his custodial laborer position with or without reasonable accommodation or identify a vacant position to which he could be reassigned.

Jane R. Lockley, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Internal Revenue Service, Agency, 2000 EEOPUB LEXIS 5964, August 31, 2000. EEOC held agency did not fail to accommodate complainant, whose condition was characterized by chronic pain and fainting spells based on her treating physician’s determination that she was fully incapacitated and unable to work due to her medical condition. Complainant contended that the agency failed to accommodate her disability by modifying the duties and responsibilities of her position so that she could continue to work as a revenue officer. The agency had attempted to accommodate her for several years before she applied for disability retirement by giving her a special lumbar support chair, by allowing her to assist with field calls, and by gradually reducing her case load to zero. None of these measures proved to be effective. Complainant’s condition eventually deteriorated to such an extent that she stopped working entirely, and although nominally employed, was on leave without pay status. In a memorandum dated January 13, 1993, one of Complainant's treating physicians, a chiropractor, indicated that she was fully incapacitated and could no longer work, and that it was impossible to determine whether she would recover. The agency conceded that Complainant had both physical and mental disabilities, but determined that Complainant was not a qualified individual with a disability. Affirming the agency’s final decision (FAD) the Commission found the agency correctly concluded that, although Complainant was disabled within the meaning of the Rehabilitation Act, she was not a qualified individual with a disability.

Matthew R. Lukowski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency 2001 EEOPUB LEXIS 330, January 17, 2001. The Commission found the agency failed to reasonably accommodate a complainant who required dialysis three times per week by denying him training opportunities. The training complainant wished to attend was scheduled to be held on four specific dates in a ten-month period in a geographically separated location. According to the complainant, the responsible official (RO) gave complainant only one week’s notice of dates on which the classes would be held. Additionally, the RO then refused to allow the complainant to make phone calls from the facility office in order to determine if he could schedule his required dialisis treatments in the geographically separate location. Finally, the RO told complainant that if he signed up for the classes, but failed to attend any of them he could be disciplined. The Commission found "the agency was required to accommodate the complainant by allowing him flexibility in arranging [his training] schedule. The Commission finds further that this obligation encompasses not only the actual attendance of the training course, but, in addition, affording the complainant an opportunity to make the necessary arrangements. Notwithstanding the latter obligation, the record reveals that the RO took actions designed to deprive the complainant of that opportunity and discourage his participation in the training course. These included not allowing the complainant to contact clinics in the vicinity of the training course and threatening him with discipline in the event he was unable to complete the training." Accordingly, the Commission found the complainant established disability discrimination.

Katherine Waldburger, Complainant, v. Richard J. Danzig, Secretary , Dept. of the Navy, Agency, 2000 EEOPUB LEXIS 1694, March 20, 2000. Commission declined to overturn Administrative Judge’s determination that agency did not fail to reasonably accommodate complainant. Complainant, who suffered from back problems preventing her from performing certain tasks, was employed as a Machinist, WG-10 at Mar Island Naval Shipyard. Complainant, worked the swing shift because she was diagnosed as having migraines, which could be better controlled if she worked on the swing shift. She worked the swing shift until she injured her back and placed on light duty. The agency declined to allow employees on light duty to work the swing shift, and complainant alleged such declination amounted to a failure to reasonably accommodate her. Although the AJ found such a blanket prohibition to violate the "individualized assessment" requirement imposed by the Rehabilitation Act, the AJ nonetheless found there were no positions on the swing shift that complainant could have performed within her medical restrictions for which she was qualified. Insofar as the complainant alleged that she could have performed the jobs that were then being performed by certain other employees on the night shift, the AJ held the agency was not required to "bump" those employees out of their positions to accommodate complainant. Complainant further argued that she could have performed dispatcher and time keeping duties on the swing shift, "those duties were merely tasks performed by various employees for no more than two hours a day, and the employees performing those tasks also performed other duties, such as painting. The AJ found that the agency was not required to gather together tasks from various positions so as to create a new position for complainant."

Daniel K. Ayers, Complainant, v. William J. Henderson, Postmaster General, 2000 EEOPUB 1146, February 25, 2000. 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."

Lesa Y. Hall, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), 2000 EEOPUB LEXIS 2239 April 21, 2000. Commission found agency did not unlawfully fail to reassign employee, who suffered from fibromyalgia. In particular, Commission found complainant was not a qualified individual with a disability because it concluded she could not perform the essential functions of her current position or other positions to which she could have been assigned with or without reasonable accommodation. "The record contains the complainant's physician's report of May 14, 1993 which concludes that ‘there is no indication that [complainant] would ever be able to work at the IRS again due to the stress of the job itself and that put on her by management which causes the symptoms of Fibromyalgia to flare.’ The doctor goes on to say, ‘her fatigue level is to the point that she can only be active three to four hours a day . . . this interferes with any outside work activity. The Fibromyalgia presently prevents [complainant] from doing any activities outside the home.’ The doctor recommends that ‘[complainant] not stay in her current position at the IRS." These opinions were given even after the complainant had been on leave for [*7] several weeks. . . . . Normally, reassignment is an accommodation of last resort. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, March 1, 1999, p.37. Here, the complainant's physician states her condition is aggravated by the stress on her current job, but it is apparent from the medical records that the complainant's condition is debilitating even absent stress. Even if the complainant were assigned to another team, the very nature of her job and the requirements of timeliness, attendance to deadlines, and meeting statutes of limitations were stressful."

Curtis Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency, 2000 EEOPUB LEXIS 2793, April 26, 2000. EEOC found complainant failed to establish a prima face case of disability discrimination based on chemical dependency. When alleging disability discrimination, a complainant must first establish that he is an individual with a disability within the meaning of Commission regulations. An individual with a disability is defined 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 history of such impairment; or 3) is regarded as having such an impairment. See 29 C.F.R. § 1630.2(g). n3 Moreover, an individual currently engaging in the illegal use of drugs is not an individual with a disability within the meaning of Commission regulations when the agency acts on the basis of such use. See 29 C.F.R. § 1630.3(a). Although individuals who are no longer illegally using drugs and have either been rehabilitated successfully or are in the process of completing a rehabilitation program are not excluded from coverage under the Rehabilitation Act, the record in the case at hand didn’t contain evidence sufficient to establish whether complainant fit within this exception to the rule. See Appendix to 29 C.F.R. Part 1630 - Interpretive Guidance on Title I of the Americans with Disabilities Act (Appendix), § 1630.3. The only document in the record relating to complainant's chemical dependency was a letter from the Cleveland Clinic noting that complainant was enrolled in the clinic's Alcohol and Drug Recovery Primary Outpatient Program as of September 16, 1996. The Commission found the letter did not establish that complainant was no longer illegally using drugs or that he was still enrolled in the program when the agency action he contested occurred.

Arnold A. Roscoe, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency 2000 EEOPUB LEXIS 6145, September 21, 2000. EEOC upheld the agency FAD, determining it did not unlawfully fail to accommodate complainant’s disability (alcoholism and depression). The complainant had a history of alcoholism, resulting in excessive absenteeism. Complainant frequently gave both alcohol and non-alcohol related reasons for his absences. Despite such leave abuses, the agency twice provided him with substantial advanced sick leave to enter rehabilitation, counseled him about his leave problems from 1991 to 1994, and suspended formal disciplinary actions while giving him additional opportunities to correct his leave problems. Each time complainant failed to improve, and by 1994 he had accumulated hundreds of hours of AWOL, and a very large negative sick leave balance. The agency then agreed to enter a Last Chance Agreement with complainant, which he violated two weeks later. The next day complainant provided a statement from his treating psychiatrist stating his absence was due to an episode of major depression. The AJ who heard the case found complainant to suffer from two disabilities: alcoholism and depression. However, finding complainant failed to show (1) a nexus between his AWOL incidents and his disabilities, and (2) failed to show he was a qualified individual with a disability, held in favor of the agency. The Commission disagreed. "Our review of the record reveals that the involved management officials, from 1991 to 1994, were aware of complainant's alcoholism, as evidenced by his need for inpatient treatment in 1992 and 1993. Given this history, these officials knew that alcoholism was at the root of complainant's leave abuses in 1992 and 1993. These officials could not then ignore this history in 1994 and assert they did not realize that complainant's continued leave problems were related to alcoholism (and now also depression by virtue of his 1994 physician's statements), especially since complainant continued in the same pattern of offering reasons for his absence that included alcohol and non-alcohol related incidents." Having found a causal connection, and that complainant was a qualified individual with a disability, the Commission, citing the repeated efforts undertaken by the agency to accommodate the complainant, found the agency met its accommodation responsibilities and upheld the removal.

Gerald D. Nab, Petitioner, v. William J. Henderson, Postmaster General, USPS, 2000 EEOPUB LEXIS 4339, June 16, 2000. The Commission in this mixed case appeal found petitioner, who had missed work without leave from August 1997 through March 13, 1998 while serving a prison sentence for drug possession, was not discriminated against on the basis of disability. "Assuming that petitioner could demonstrate that he is an individual with a disability, he has not demonstrated that there is a connection between his disability and his removal for inappropriate conduct and being AWOL.

Nicholas J. Barbrie, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, 2000 EEOPUB LEXIS 2306 April 19, 2000. In a mixed case review, EEOC affirmed finding of MSPB in that agency did not engage in disability discrimination by removing petitioner. Petitioner had claimed certain work restrictions due to a back injury. The agency explained that petitioner was removed from employment because (1) he engaged in outside employment while receiving OWCP benefits for temporary total disability, in spite of his awareness that he was obliged to notify the agency if he were able to return to work in any capacity, and (2) because he engaged in outside employment while on approved sick leave. This explanation is sufficient to meet the agency's burden to show it removed petitioner for a legitimate nondiscriminatory reason. The Commission concluded "petitioner has adduced no evidence whatsoever to support a finding that his removal was in any way motivated by age or disability-discriminatory animus."

Kathy S. Kite, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, 2000 EEOPUB LEXIS 6006 August 29, 2000. In this mixed case appeal the Commission upheld the MSPB’s determination that petitioner had not been terminated based on her disability (back pain). The agency had a policy of requiring employees who miss work because of medical reasons to follow a certain procedure regarding the provision of medical information and that sort of thing. The petitioner, who had several extended absences, failed to follow those procedures. The Commission assumed, for purposes of its analysis that she was disabled. If found, however, that she failed to show any causal nexus between her alleged disability and the charges upon which her dismissal was based., i.e., unsatisfactory attendance, continuous AWOL, and failure to follow instructions. The commission found that her dismissal was based on the fact that she had been absent from work for an extended period, that she had received letters instructing her to return to duty and/or provide medical documentation to cover her absence, and that she ignored the letters. "As found by the MSPB, the petitioner’s failure to request approved leave and supply acceptable medical evidence was sufficient to support the [dismissal]. The petitioner submit[ted] no evidence that she was unable to respond to the letters by requesting leave and supplying medical advice. Accordingly, the petitioner failed to establish a nexus between her alleged disability and the charges upon which her removal were based."

Richard A. Irvin, Complainant, v. Bill Richardson, Secretary, Department of Energy, 2000 EEOPUB LEXIS 5916, September 8, 2000. Commission found agency failed to reasonably accommodate complainant. Complainant, who suffered from narcolepsy and cataplexy experienced extreme drowsiness and sudden loss of muscular control on an intermittent basis. Additionally, due to his conditions, complainant had a difficult time waking up clearly to meet an early report time at work. Plaintiff worked an alternate work schedule of 8:00 to 5:30 with alternate Mondays off. When he continued to have difficulty meeting an early arrival time, he was allowed to shift his schedule to 8:30 to 6:00, and to remain on the alternate work schedule. The agency refused his request to be allowed to start work at 9:30 and work past 6:00 so he could remain on a flexible schedule because there would be no supervisors to verify his work after 6:00. As another option, the agency offered to allow him to work a straight 9:30 to 6:00 duty day and discontinue taking every other Monday off. The Commission found the agency met its obligation to accommodate complainant, and was not required to provide the accommodation of his choice (flex schedule and remain on alternate work schedule), but rather an accommodation that would enable him to perform the essential functions of his position. Complainant also suffered from a visual impairment that prevented him from being able to read notes and handwritten comments his supervisors made on documents he produced. As an accommodation, he requested the agency provide him a clerical assistant to aid him with these tasks. His supervisor said he would make his clerk available to assist complainant, but according to the record the clerk was not very responsive in these tasks. Noting the agency failed to show that granting complainant’s request for an assistant would have caused an undue hardship, the Commission found the agency failed to reasonably accommodate complainant. Despite the chronic nature of complainant’s disability, the agency required him to produce medical documentation each time he was tardy or it charged him annual leave. Complainant requested simply to be charged accrued sick leave in those instances, but the agency essentially said, no medical documentation, no sick leave. The Commission found the agency should have accommodated complainant by allowing him to take accrued sick leave instead of consuming annual leave.

Cheryl New, Complainant, v. William J. Henderson, Postmaster General 2000 EEOPUB LEXIS 76, January 18, 2000. 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.

2000 EEOPUB LEXIS 259, February 2, 2000. 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.