In Fellows-Gilder v. Department of Homeland Security, EEOC Appeal No. 01A33476 (Dec. 8, 2005), the EEOC concluded that the Department of Homeland Security discriminated against Jo Fellows-Gilder because of its unfounded fears that her disability caused her to be a threat to herself or others in the workplace.

In November 1999, the then-Immigration and Naturalization Service hired Ms. Fellows-Gilder as a personnel clerk at its Law Enforcement Support Center. After Ms. Fellows-Gilder’s selection, the agency’s director discovered that doctors had previously diagnosed her with non-epileptic seizures and an anxiety disorder. The director reacted by asking Ms. Fellows-Gilder to provide medical documentation establishing that she could perform in a “continual stressful environment.” Ms. Fellows-Gilder complied and submitted a letter to the director from her physician stating that she could “manage the job.” The director accepted Ms. Fellows-Gilder’s letter, and she soon began to work for the agency.

During Ms. Fellows-Gilder’s first six months at the agency, she received a “fully successful” performance rating and was able to respond to customer questions at a higher rate compared to her coworkers. However, Ms. Fellows-Gilder also experienced three non-epileptic seizures; one during her lunch hour and two during work hours, each lasting approximately 15 minutes. Ms. Fellows-Gilder would resume her work within an hour of each seizure. However, the director placed her on administrative leave in May 2000 and requested additional letters from her doctors stating that she is fit for duty. In June 2000, Ms. Fellows-Gilder’s doctors stated that she could perform her job duties “without endangering the health and safety of [herself] or others.” Nonetheless, the agency terminated Ms. Fellows-Gilder in July 2000 based upon its perception that she suffered from a “chronic, on-going, unresolved medical condition that prevents her from performing the duties of her position in a consistent, timely manner.”

Ms. Fellows-Gilder filed an EEO complaint in October 2000. At the EEOC administrative hearing, the administrative judge accepted the agency’s reasons for terminating Ms. Fellows-Gilder and found that there was no discrimination. Ms. Fellows-Gilder appealed the decision to the EEOC Office of Federal Operations.

In a harsh rebuke of the AJ’s legal analysis and factual findings, the EEOC rejected the AJ’s opinion and decided that the agency discriminated against Ms. Fellows-Gilder in violation of the Rehabilitation Act. First, the EEOC concluded that Ms. Fellows-Gilder was a qualified individual with a disability. Although Ms. Fellows-Gilder’s non-epileptic seizures did not occur frequently enough to constitute a substantial impairment in a major life activity, the EEOC found that the agency regarded Ms. Fellows-Gilder as substantially limited in concentration and thinking. Even though Ms. Fellows-Gilder was not disabled, the agency treated her as disabled when it erroneously believed that her seizures were so severe that she would lose concentration for an entire day.

Next, the EEOC determined that, despite the agency’s perception of Ms. Fellows-Gilder’s medical condition, she could nonetheless perform the essential functions of her job. Based on evidence such as Ms. Fellows-Gilder’s “fully successful” rating; testimony from supervisors that after her three seizures, she quickly resumed her work answering customer questions; and the short recovery period after a seizure, the EEOC deemed her qualified to perform her work duties.

The EEOC then rejected the agency’s assertion that Ms. Fellows-Gilder’s seizures created a direct threat to herself and her coworkers. The EEOC found that the agency failed to make its decision based on an informed evaluation of Ms. Fellows-Gilder’s medical condition or work situation. Even though Ms. Fellows-Gilder’s doctor stated that when a person experiences a non-epileptic seizure, the “person does not get hurt and does not hurt anyone else,” the agency ignored him. Rather, the agency relied upon the experience of another employee—from another agency—who developed seizures following brain surgery and hurt himself.

The EEOC also rejected the agency’s argument that when Ms. Fellows-Gilder experienced the three seizures, her coworkers became uncomfortable. The EEOC stated that Ms. Fellows-Gilder is not responsible for her coworkers’ reactions to her medical condition. Because the agency failed to meet its burden of proving that Ms. Fellows-Gilder was a direct threat, the EEOC concluded that the agency violated the Rehabilitation Act.

The Rehabilitation Act requires agencies to conduct an individualized assessment of the employee’s medical condition when determining whether the employee is a direct threat to self or others. The EEOC’s decision emphasized that an agency cannot take an adverse employment action against a disabled employee based solely upon unfounded fears and stereotypes of an employee’s disability or perceived disability.

* 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