In Fellows-Gilder v. Department of Homeland Security (Immigration and

Naturalization Service (INS)), EEOC Appeal No. 01A33476 (December 8, 2005),

the Equal Employment Opportunity Commission held that the INS, as well as the

EEOC administrative judge (AJ) who originally heard the case, mistakenly relied

on management’s determination that Jo Fellows-Gilder’s disability presented a

safety risk to the agency. Ms. Fellows-Gilder began working for the INS as a

personnel clerk in April 1999. Earlier in 1999, she had applied for a position as

an Immigration Status Verifier (ISV). After applying for this position, Ms.

Fellows-Gilder was treated for non-epileptic seizures and an anxiety disorder

and was on extended sick leave from August to November of 1999.

In September 1999, Ms. Fellows-Gilder received a notice that she was selected

for the ISV position. In October 1999, the agency asked Ms. Fellows-Gilder to

present medical documentation from her attending physician that would show that

she could perform in a stressful environment. Ms. Fellows-Gilder’s physician

wrote a letter that stated Ms. Fellows-Gilder should be able to manage the job.

Ms. Fellow-Gilder reported to work as an ISV on November 8, 1999. From that point,

until May 5, 2000, Ms. Fellows-Gilder had approximately three seizure episodes,

two of which were during work hours and one during lunch.

On May 5, 2000, Ms. Fellows-Gilder was placed on administrative leave and

requested to bring in medical documentation to determine if she should be allowed

to continue her employment. Again, her physician wrote a letter confirming that

Ms. Fellows-Gilder could perform the duties of her employment without endangering

herself or others. On July 24, 2000, the agency issued a letter stating that

because Ms. Fellows-Gilder suffered from a chronic, ongoing, unresolved medical

condition that prevents her from performing the duties of her position, and

because the seizures were unpredictable and the severity unknown, it was unable

to accommodate her disability. Ms. Fellows-Gilder was separated from employment

on July 29, 2000.

Ms. Fellows-Gilder filed a formal complaint of discrimination on October 19, 2000,

and at the conclusion of the agency’s investigation, requested a hearing before an

AJ. The AJ held that Ms. Fellows-Gilder had a chronic, ongoing unresolved medical

condition that prevented her from performing the essential duties of her position

in a timely manner with or without accommodation. The AJ also found that Ms.

Fellows-Gilder’s medical condition posed a risk to her herself or others and that

the agency’s articulated reasons for not accommodating her disability were legitimate.

Ms. Fellows-Gilder appealed this decision to the EEOC’s Office of Federal

Operations (OFO).

On appeal, the Commission found that Ms. Fellows-Gilder was not an individual

with a disability because there was no medical evidence in the record that

supported a finding that she was substantially limited in her daily life activities.

The Commission did find that the agency regarded Ms. Fellows-Gilder as disabled

when it concluded that her seizure disorder significantly restricted her ability

to concentrate and think. The EEOC has recognized mental and emotional processes

as major life activities. Testimony by management officials indicated that the

agency considered her seizures to have a significant impact on Ms. Fellows-Gilder’s

ability to perform these major life activities. However, testimony by Ms.

Fellows-Gilder’s direct supervisors revealed that she not only was able to

resume working after a seizure, but also had a higher than average number of

daily queries. Additionally, if an ISV employee suddenly became violently ill,

the query would go to the next available person. Finally, Ms. Fellows-Gilder’s

physician testified that one of the hallmarks of her seizure disorder is that

the person does not get hurt and does not hurt anyone else.

The Commission has held that an agency cannot exclude qualified individuals

with disabilities from employment based on fear of a future risk of injury,

without engaging in an individualized assessment into whether their disabilities

pose a “direct threat” of substantial harm. To exclude such an employee, the

agency must show that the threat was a “significant risk” of substantial harm.

The agency has the burden of proving that there is a significant risk and cannot

rely on the employer’s subjective evaluation or upon medical reports alone.

Instead, the agency must take into account (1) the duration of the risk, (2) the

nature and severity of the potential harm; (3) the likelihood of the potential

harm, and (4) the imminence of the potential harm. After reviewing the evidence

presented, the Commission found that the agency had not met its burden and that

the agency’s motivation in its decision to terminate Ms. Fellows-Gilder was the

concern for the way her coworkers reacted to her seizures.

For federal employees, this decision confirms the Commission’s position that

when assessing an employee’s disability, an agency must do an individualized

assessment, considering not only the medical documentation, but also the

employee’s work history and the actual effects of the disability with regard

to the potential risk, if any, that is posed by the disability. If the agency

believes that there is a risk posed by the employee’s disability, the agency

has the burden to prove that there is a significant risk of substantial harm.

Additionally, even if the employee’s medical condition does not rise to the

level of a disability, this decision still requires such an individualized

assessment if the agency perceives the employee as disabled.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a

law firm dedicated to the representation of federal employees worldwide. For

more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal

Employees Legal Survival Guide, Second Edition, a comprehensive overview of

federal employees’ legal rights. To order your copy, go

to http://www.fedweek.com/pub/index.php