**EEOC and MSPB Cases Applying Supreme Court Cases**

**[Sutton]{.underline}, [Murphy]{.underline}, and
[Kirkingburg]{.underline}**

**to the question: \"What Constitutes a Disability?\"**

**Johnny B. Drummond, Petitioner, v. Louis Caldera, Secretary of the
Army**

**2000 EEOPUB LEXIS 958**

**Mar 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.\"

**Darlynn Bell, Complainant, v. William J. Henderson, Postmaster
General**

**2000 EEOPUB LEXIS 960**

**Mar 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]{.underline}.

**John R. Muskopf, Complainant, v. William J. Henderson, Postmaster
General**

**2000 EEOPUB 1142**

**Feb 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 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.)

**Kenneth C. Brown, Complainant, v. Louis Caldera, Secretary of the
Army**

**2000 EEOPUB LEXIS 1145**

**Feb 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.\"

**Daniel K. Ayers, Complainant, v. William J. Henderson, Postmaster
General**

**2000 EEOPUB 1146**

**Feb 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]{.underline} 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.\"

**Ronald R. Lewis, Petitioner, v. Janet Reno, Attorney General**

**2000 EEOPUB LEXIS 665**

**Feb 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 MSPB decision.

**Preston L. Darkes, Complainant, v. William S. Cohen, Secretary of
Defense**

**2000 EEOPUB LEXIS 667**

**Feb 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]{.underline}. . . . 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.\"

**Lawrence Cabral, Petitioner v. David J. Barram, Administrator, GSA**

**2000 EEOPUB LEXIS 669**

**Feb 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]{.underline} 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.\"

**James R. Holtgrewe, Complainant, v. Donna A. Tanoue, Chairman, FDIC**

**2000 EEOPUB LEXIS 477**

**Feb 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.\"

**Martin J. Egan, Complainant, v. William J. Henderson, Postmaster
General**

**2000 EEOPUB LEXIS 141**

**Feb 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]{.underline}, 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.\"

**Jane C. Morgan, Complainant, v. John H. Dalton, Secretary of the
Navy**

**2000 EEOPUB LEXIS 144**

**Feb 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.

**Marian D. Rollins, Complainant, v. Kenneth S. Apfel, Commissioner,
SSA**

**2000 EEOPUB LEXIS 259**

**Feb 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.

**David U. Unterburger, Complainant, v. William J. Henderson, Postmaster
General**

**2000 EEOPUB LEXIS 228**

**Feb 1, 2000**

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]{.underline},
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.\"

**Teresa A. Williams, Complainant, v. William J. Henderson, Postmaster
General**

**2000 EEOPUB LEXIS**

**Jan 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.\"

**Cheryl New, Complainant, v. William J. Henderson, Postmaster General**

**2000 EEOPUB LEXIS 76**

**Jan 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.

**MSPB Cases Applying [Sutton]{.underline}, [Murphy]{.underline}, and
[Kirkingburg]{.underline}**

**Barbara Shestak v. Social Security Administration**

**84 M.S.P.R. 307**

**Nov 18, 1999**

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]{.underline} and [Murphy]{.underline}. \[There is an interesting
discussion in the case referencing a split in judicial opinions over
which party, employee or employer, bears the burden of establishing the
\"essential functions\" of a disputed position. The case doesn\'t turn
on this issue, but it may be persuasive if the same issue arises in
other cases in the future.\]

**Sylvia F. McFadden v. Department of Defense**

**85 M.S.P.R. 18**

**Dec 21, 1999**

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.\" \[Note, this
case also contains a good discussion about light duty as a reasonable
accommodation.\]

**Niranjan D. Vyas v. Dept of the Army**

**83 M.S.P.R. 452**

**Sep 2, 99**

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. \[The Board
didn\'t use the term \"actually,\" but that\'s the terminology the
Supreme Court uses in [Sutton]{.underline} to describe the class of
people who are considered to be disabled - those with physical or mental
impairments that substantially limit a major life activity.\]
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.