Regard at Your Own Risk…

We are often asked, during EEO-related training, for examples of “regarded as” as it relates to disability discrimination. This is a less common allegation raised in EEO complaints, but it’s important to recognize what it looks like. 

This example comes from an EEOC appellate decision (Johana S., 1 v. Department of Agriculture (Forest Service), July 1, 2016, Appeal No. 0120131804) We’ll summarize the salient points:

• Complainant (CP) was a GS-12 Criminal Investigator in USDA’s Forest Service who worked with local law enforcement to conduct drug operations/investigations dealing with illegal marijuana sites/gardens.
• The position required physical demands involving “frequent and recurring surveillance in which there is a considerable amount of walking, stooping, bending and climbing.”
• CP had suffered an on-the-job injury to her lower back which required surgery. While recovering, she was temporarily unable to perform moderate to arduous physical activities, and she was unable to stand for extended periods of time (more than 15 minutes) or to walk long distances. 
• One of the RMOs received a verbal complaint from the local county sheriff’s office with whom they were working. The complaint alleged the CP’s was running the marijuana site investigation/operation from a helicopter rather than going into the gardens with the teams, which team members looked at as a safety concern.  CP couldn’t walk into the gardens because of her injury.  The RMO argued that there is no way the CP could effectively run the operation from the helicopter because she could not see or direct what is going on without being on the ground.
• CP disagreed alleging: (1) her actions were consistent with standard operating procedures; (2) she assigned an officer to be the lead on the ground; and (3) she had been performing in a similar way for other operations without complaints and with higher performance ratings.
• CP was removed from a subsequent raid with the same sheriff’s office. When she asked the RMO, he told her the office did not want to work with her.  CP alleged taking away this duty jeopardized her professional reputation.
• Subsequently, two events occurred: (1) The RMO issued CP a memo temporarily reassigning her to administrative duties; and (2) she received a “fully successful” on her annual performance rating. The RMO wrote “Due to your limitations at this time I feel that fully successful is fair.”

At the EEOC hearing, the Administrative Judge (AJ) found that although the CP had a disability, she was not “qualified” for her position because she could not perform the essential functions of the position with or without accommodation.  The AJ further found the agency properly allowed the CP to work administrative duties commensurate with her position and therefore met its obligations under the Rehabilitation Act.

On appeal, EEOC found that although the CP’s injury affected her ability to stand and walk for extended periods of time, she did not submit medical documentation.  For that reason, EEOC found that there was no evidence, other than the CP’s contention, that she had a physical or mental condition that substantially limited one or more major life activities.  However, EEOC found, despite this, the agency “regarded” CP as having an impairment.  The decision notes that after asking the CP to provide medical documentation, management reassigned her to administrative duties and gave her a lower performance rating because of her physical limitations.  EEOC stated that when they did this to the CP, they regarded her as if she were substantially limited in the major life activities of walking and standing.  Therefore, she meets the definition of an individual with a disability. The Commission disagreed with the AJ’s finding that the CP was not a qualified individual with a disability (QUID) because: (1) the agency had been accommodating her by allowing her to work operations from a helicopter; and (2) issued her a superior rating during that time, which they noted was evidence that she could perform her essential functions of the position with an accommodation. EEOC noted that most of her work was done from a desk, with operations only occurring once a week or once a month.  Therefore, EEOC found she was a QUID.

Finally, EEOC found direct evidence of disability discrimination when management removed the CP from operations and lowered her performance evaluation because, in both cases, those actions were taken because of her back injury, which the RMO regarded as a disability. 

This case exemplifies the importance of not treating a person who has been successful in performing his/her job differently because the agency regards the individual as having a disability.