102 FMSR 7102
102 LRP 19004

Elaine P. Rio v. Social Security Administration
92 MSPR 198

U.S. Merit Systems Protection Board
AT-0752-00-0819-I-1
August 14, 2002

Related Index Numbers

38.028 Handicap/Disability
1002.012 Discrimination
112.043 Discrimination

Ruling

Because the two MSPB members could not agree on the disposition of the petition for review, the AJ's decision rejecting the appellant's disability discrimination claim became the MSPB's final decision.

Meaning

This decision cannot be considered as precedent. Board Member Slavet would have remanded the appeal so that the appellant could provide further evidence supporting a finding of disability for purposes of the ADA.

Case Summary

The appellant worked as a contact representative until her separation in 2000. Although the agency processed her separation as a voluntary disability retirement, it did so only after it removed the appellant for excessive absenteeism. The AJ sustained the removal and found the agency had complied with the FMLA. The AJ also found the appellant failed to show the removal constituted disability discrimination or reprisal for her filing a discrimination complaint, and she failed to show the agency had harassed her because of her disability. The appellant petitioned for review, challenging the AJ's findings on her disability discrimination claim. Because the two MSPB members could not agree, the AJ's decision became the MSPB's final decision. Both board members issued separate opinions. Chairman Marshall found no basis to overturn the AJ's conclusion. In her view, assuming the appellant's medical condition was properly considered a disability under the Rehabilitation Act, she failed to show she was entitled to the accommodations she requested because she failed to show those accommodations were reasonable. Board Member Slavet would have remanded the appeal so that the appellant could provide further evidence supporting a finding of disability for purposes of the ADA. In her view, it was not clear whether the appellant's medical condition of TMJ substantially impaired her "major life activity" of speaking. She would have instructed the AJ to consider, if he found the appellant's disability did not substantially limit her "major life activity" of speaking, whether the appellant should be considered disabled as a result of a substantial impairment of her ability to work.

Judge / Administrative Officer
Susanne T. Marshall, Chairman; Beth S. Slavet, Member


Full Text

Order Separate Opinion of Susanne T. Marshall Separate Opinion of Beth S. Slavet

APPEARANCES:

Michael J. Snider, Esquire, Baltimore, Maryland, for the appellant.
Peter Derrico, Jr., Atlanta, Georgia, for the agency.

Order

This case is before the Board by petition for review of the initial decision which affirmed the agency's decision to remove the appellant. The two Board members cannot agree on the disposition of the petition for review. Therefore, the initial decision now becomes the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b) (5 C.F.R. §§ 1200.3(b)). This decision shall not be considered as precedent by the Board in any other case. 5 C.F.R. §§ 1200.3(d).

Separate Opinion of Susanne T. Marshall

The appellant has provided no basis, and there is none, on which to remand this appeal to the regional office, to disturb the administrative judge's finding that the agency's decision to remove the appellant did not constitute disability discrimination, or to overturn his conclusion that the decision must be affirmed.

The Board has found that the regulations the Equal Employment Opportunity Commission issued to implement the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq., require agencies to provide reasonable accommodation of the known physical or mental limitations of an employee who is a qualified individual with a disability unless the agency can demonstrate that the accommodation would impose an undue hardship on the operations of its programs. Rule v. Department of Veterans Affairs, 85 M.S.P.R. 388, 393 (2000) (citing 29 C.F.R. §§ 1614.203(c)(1)). If the employee cannot be reasonably accommodated in her position, the regulations require agencies to offer to reassign the employee to a funded vacant position that is located in the same commuting area and serviced by the same appointing authority, that is at the same grade or level, and the essential functions of which the employee would be able to perform with any necessary reasonable accommodation. Id. (citing 29 C.F.R. §§ 1614.203(g)). If a position is not available at the employee's same grade or level, an agency must offer to assign the employee to a vacant position at the highest available grade or level below the employee's current grade or level. Id.

As my colleague's separate opinion indicates, the appellant requested in September 1992 and in April 1993 that her temporomandibular joint dysfunction be accommodated through reassignment or through demotion to a lower-grade position. Appeal File, Tab 27, Appellant's Exs. F-1, F-16. Those requests, however, did not obligate the agency to look for positions to which to assign the appellant at the time it was preparing to remove her. The decision to take a removal action was not made until July 5, 2000, more than 7 years after the April 1993 request, nearly 8 years after the September 1992 request, and at a time when the appellant was no longer employed at the GS-7 grade level she held when she made at least the first of those requests. Id., Tab 7, Subtab 4D (removal decision); id., Tab 27, Appellant's Ex. F-1 (September 1992 request for accommodation, in which appellant stated that she was employed at "Grade 7").1 Moreover, nothing in the record suggests that the appellant renewed her request for reassignment or demotion after she was promoted to the GS-8 level, or at any time after April 1993. Instead, the only subsequent requests for accommodation reflected in the record are requests the appellant made in August and September 1999, shortly before she filed her disability retirement application; and in those requests the appellant asked only for a "temporary detail" to a position closer to her home, a reduction in the minimum number of hours she would be required to work, and work assignments that did not require her to receive visitors at a window (an assignment that evidently required more talking than desk duties required). Id., Tab 27, Appellant's Exs. H-15 through H-17.

Further, nothing in the record indicates that the appellant bases her disability discrimination claim on the agency's failure to respond more favorably to her 1992 and 1993 requests for accommodation. Although the appellant submitted copies of those requests below, she appears to regard the requests as background information. The only requests for accommodation to which she refers in her petition for appeal are the ones she made in 1999, shortly before she filed her disability retirement application. Id., Tab 1, Petition for Appeal, Block 32a (appellant's statement that, when she requested accommodation, she was advised to file a disability retirement application or face termination of employment); id., Tab 27, Appellant's Ex. B-1. Furthermore, neither the appellant's prehearing brief nor the closing argument her attorney presented at the hearing relies on or even refers to the 1992 and 1993 requests for assignment to other positions. Id., Tab 18, Prehearing Brief; Hearing Transcript (H.T.) at 539-46 (closing argument).

The record therefore shows that the appellant's claim of disability discrimination is based only on the agency's failure to make the kinds of accommodation the appellant requested shortly before she filed her disability retirement application, i.e., on her requests in August and September 1999 for a detail to an office closer to her home, for a scheduled workday as short as 4 hours, and for assignment of desk duties without any window or receptionist duties. Appeal File, Tab 27, appellant's Exs. H-15 through H-17, M-1. Although the Member's separate opinion discusses several positions for which the appellant allegedly was qualified, the evidence does not show that she requested permanent assignment to another position at any time within 7 years of her separation, let alone assignment to a position where she would work her regular hours. The record also shows that, although the agency explained why it needed to staff its field offices to provide appropriate levels of service to its customers and why the need for certain personnel was greater in some offices than others, the appellant insisted on working in an office that was, in her view, close enough to her home. See id., Tab 27, Appellant's Ex. M-1.

The appellant was a Contact Representative. Id., Tab 7, Subtab 4A. Assuming that the appellant's medical condition is properly considered a "disability" under the Rehabilitation Act, the appellant has failed to show that she was entitled to the accommodations she requested because she has failed to show that those accommodations were reasonable. As the administrative judge indicated, ID at 7-8, the nature of the appellant's position required the incumbent to speak more or less continually throughout the day. That is, the position required communication throughout the day with people seeking information and other kinds of assistance from her agency. E.g., Appeal File, Tab 27, Appellant's Ex. C; H.T. at 280-81. While some of this communication was written, the record indicates that most of it needed to be provided orally, to people who either visited the appellant's office or telephoned it. H.T. at 150-53. It also indicates that, during times when the office was not particularly busy, and when not all service windows needed to be open, a Contact Representative might spend about half the workday at a window, assisting visitors who entered the office, and the other half working at her desk while backing up another Contact Representative who was working at a window. Id. at 150, 281. As the number of visitors to the appellant's office increased, additional windows were opened up and staffed by employees who otherwise would have been working at their desks. H.T. at 151, 281. Even when not working at a window, a Contact Representative was expected to answer the telephone. Id. at 152. In addition, the record indicates that the agency attempted to assist the appellant well before her retirement by allowing her to work part-time, and by working with other employees in the office to limit the appellant's talking to that required by her job. Appeal File, Tab 7, Subtab 4O; H.T. at 154, 206, 221-22. The appellant's continuing absences show that these attempts were unsuccessful. Id., Subtab 4H.

The appellant also argues that the agency should have accommodated her medical condition by detailing her to an office closer to her home. E.g., PFR at 37. Again, I agree with the administrative judge, IDat 8-9, that the agency did not act improperly in declining to grant her request. While the appellant's physician testified that driving "[p]ossibly" could aggravate a TMJ disorder "if it results in increased muscle activity which, in turn aggravates the jaw," he did not recall that the appellant ever told him that driving had that effect. H.T. at 126, 129. He also indicated that, although he believed he "did endorse, if possible, working in a location that was closer to her," he did so only because the appellant "was somehow focused on working closer to home," rather than because he had reason to believe driving a longer distance to work aggravated her disorder. Id. at 130-31.

Finally, a finding that the agency was not obligated to make the accommodations the appellant requested is consistent with the approval by the Office of Personnel Management of the appellant's application for a disability retirement annuity. Appeal File, Tab 27, Appellant's Ex. B-5, 5 U.S.C. §§ 8337(a) (employee considered "disabled," for purposes of disability annuity, only if found to be unable to render useful and efficient service in her position).

For the reasons stated above, the administrative judge correctly found that the agency was not required to detail the appellant to an office closer to her home or to make the modification in her duties that the appellant sought. Moreover, and in the absence of a current request for assignment to another position, the agency was not obligated to consider making such an assignment. Thus, the Board need not reach the issue of whether, under Toyota Motor Manufacturing, Kentucky v. Williams, 122 S. Ct. 681, 689-94 (2002), the appellant's medical condition constituted a "disability" under the Rehabilitation Act. Because the appellant has shown no error in the administrative judge's findings on these or any other issues, her petition for review should be denied.

Separate Opinion of Beth S. Slavet

For the reasons stated below, I would vacate the initial decision and remand this appeal for further adjudication.

The appellant was employed as a Contact Representative, GS-0962-08, in the agency's field office in Tampa, Florida, until her separation on July 21, 2000. Appeal File, Tab 7, Subtab 4A. Although the agency processed the separation as a voluntary disability retirement, it did so only after it had decided to remove the appellant for excessive absenteeism. Id., Subtab 1 at 1; id., Subtabs 4A, 4D. The administrative judge found that the Board had jurisdiction over the appellant's appeal from the removal decision;2 he sustained the charge on which that decision was based; and he found that the agency had complied with the Family and Medical Leave Act of 1993. Initial Decision(ID) at 1 & n.1, 4-6. He also found that the appellant had failed to show that the removal decision constituted disability discrimination or reprisal for her filing a discrimination complaint; that she had failed to show that the agency had harassed her because of her disability; and that the penalty of removal was reasonable. Id. at 6-14. Accordingly, he affirmed the removal decision. Id. at 14.

The appellant has filed a timely petition for review, in which she challenges the administrative judge's findings regarding her claim of disability discrimination. Petition for Review (PFR) File, Tab 3.3 The agency has filed a timely response to the petition. Id., Tab 4.

Under the Americans with Disabilities Act of 1990 (ADA), §§ 102, 104 Stat. 328, 331, codified at 42 U.S.C. §§ 12112, and related regulations, 29 C.F.R. §§ 1614.203(c), an agency has an obligation to make reasonable accommodation to the known physical limitations of an employee who is a qualified individual with a disability unless the agency can demonstrate that the accommodation would impose an undue hardship on the operations of its programs. Reasonable accommodation may consist of restructuring the employee's job so that the employee is able to perform its essential functions, or it may consist of reassigning the employee to a funded vacant position in the same commuting area, serviced by the same appointing authority, whose essential functions she would be able to perform with or without reasonable accommodation. 29 C.F.R. §§ 1614.203(c), (g).

The appellant in the present case has submitted evidence that she has a temporomandibular joint (TMJ) dysfunction that makes talking for significant periods of time painful. E.g., Appeal File, Tab 27, Appellant's Exs. E-1, E-5, E-6, E-7, E-14, E-19. On September 24, 1992, she submitted a formal request for accommodation of this condition. Id., Appellant's Ex. F-1. In that request, she asked for "[a]ny position that [did] not require constant use of" her temporomandibular joint. Id. About 6 months later, the agency sent the appellant a memorandum denying the request. Id., Appellant's Ex. F-12. In the memorandum, it referred to discussions it had had with the appellant regarding her request; it stated that there were no "comparable positions" at her grade level and within her commuting area; it noted that she was no longer working full-time; and it indicated its willingness to accommodate her through means such as continued part-time work and periods during which she could rest her voice. Id. In April 1993, about a month after the date of this response, the appellant requested assignment to a lower-grade position and indicated in doing so that she was willing to be detailed temporarily to a position other than a service representative position until a decision could be made on her request. Id., Appellant's Ex. F-16.

Nothing in the record indicates that the agency ever offered the appellant a lower-grade position. The only accommodations reflected in the record are the part-time schedule mentioned above and the agency's working with other employees in the office to limit the appellant's talking to that required by her job. Appeal File, Tab 7, Subtab 4O; H.T. at 154, 206, 221-22. Moreover, although the appellant again requested accommodation in August and September 1999 -- this time asking for a detail to an office closer to her home, for a schedule of 4 to 6 hours a day, and for assignment to desk duties rather than to window or receptionist duties -- the agency again denied her request in part, authorizing a further reduction in her hours but declining to assign her even temporarily to another office or to eliminate her receptionist duties. Appeal File, Tab 27, Appellant's Exs. H-15 through H-17, M-1. A few months later, the appellant filed her application for disability retirement. Id., Appellant's Ex. B-1. After the application was initially disallowed, and before the agency learned of the subsequent approval of the application, the agency proposed and decided to remove the appellant. Appeal File, Tab 7, Subtabs 4D, 4F. 4

In his initial decision, the administrative judge found that the appellant was "disabled" for purposes of the provisions cited above. IDat 7-8. He also found, however, that the agency did not have an obligation to accommodate her disability by modifying her duties so that they required less talking; that it did not have an obligation to provide her with an assignment to an office closer to her home; and that the appellant had failed to present evidence that she was qualified for assignment to any positions in her area that were vacant and funded at the time of her separation. Id. at 8-9.

I see no error in the administrative judge's finding that the agency was not obligated to modify the duties of the appellant's position or to assign her to a position closer to her home. I note that the appellant presented evidence, however, while the case was pending before the regional office, that there were vacant funded positions in her area at the time of her separation, Appeal File, Tab 29, Ex. EE; and I believe, for reasons explained below, that the appellant also presented persuasive evidence that she was qualified for assignment to at least one of those positions.

As the administrative judge indicated, the appellant has the burden of proving an affirmative defense of disability discrimination by a preponderance of the evidence. Savage v. Department of the Navy, 36 M.S.P.R. 148, 151 (1988); ID at 2. A disabled employee may do so by showing that a funded vacant position at or below her grade level existed in her commuting area, and that she could have been assigned to that position. Jackson v. United States Postal Service, 79 M.S.P.R. 46, 53-54 (1998).

In this case, the appellant has identified specific positions for which she alleges she was qualified, including several Case Assistant, GS-6/7/8, positions in Tampa, and she has alleged that she could perform the duties of a Case Assistant position without modification. The record supports these allegations. The agency's former representative testified at the hearing that he believed the appellant was qualified for assignment to the Case Assistant position, id. at 76-77; a former hearing office manager in the office in which the Case Assistant positions were located indicated in her deposition that receptionist duties were not an essential part of the duties of those positions, id. at 86, 109, 111; a former union official who had represented employees in the office testified that positions there did not require the extensive interviewing that the Contact Representative positions required, id. at 454; and the parties stipulated that another Contact Representative with TMJ dysfunction and a need to limit her speaking duties was accommodated through her assignment to a position similar to the Case Assistant position about the time of the appellant's separation, id. at 75, 97, 101-02, 453-55.5

Moreover, the agency has not rebutted the evidence described above, and it did not even argue at the hearing that assigning the appellant to a Case Assistant position at her then-current grade level, GS-8, would have imposed an undue burden on it. Instead, it argued that it was not required to effect such an assignment because it had already limited the amount of speaking required of the appellant in her Contact Representative position. E.g., H.T. at 537-38. The appellant's continuing absences following this modification, however, and the approval by the Office of Personnel Management of her application for a disability retirement annuity, show that those attempts were unsuccessful in enabling the appellant to perform the essential functions of her position. Appeal File, Tab 7, Subtab 4H; id., Tab 27, Ex. B5; 5 U.S.C. §§ 8337(a) (employee considered "disabled," for purposes of disability annuity, only if found to be unable to render useful and efficient service in her position).

I note further that a disability retirement annuity may be awarded under 5 U.S.C. §§ 8337, the section under which the appellant's annuity was awarded, only when the employee "is not qualified for reassignment to a vacant position which is in the agency at the same grade or level and in which the employee would be able to render useful and efficient service." 5 U.S.C. §§ 8337(a); Appeal File, Tab 7, Subtab 4E. The Board has held, however, that an appellant's application for, and receipt of, a disability retirement annuity do not necessarily preclude a finding of disability discrimination. Lamberson v. Department of Veterans Affairs, 80 M.S.P.R. 648, 15-32 (1999). Moreover, while statements an appellant made in support of her application for such an annuity may be relevant to the merits of the discrimination claim, id., 18, nothing in the record indicates that the appellant ever claimed -- in her retirement application or elsewhere -- that she could not be reassigned to a suitable vacant position. The only part of her retirement application in which the appellant was asked to address accommodation consists of two adjacent blocks in which the appellant was asked to describe the accommodations she had requested from her agency and to state whether her "agency [had] been able to grant [her] request." Appeal File, Tab 27, Ex. B-1 (appellant's application, blocks 7a, 7b). The appellant indicated in the first of these blocks that she had asked for a detail to another office; and, although she checked the "no" box in the second block, that response appears to reflect only the lack of success she had had in obtaining even the more limited form of accommodation she had most recently sought.6

Under the circumstances described above, it appears that the appellant may have shown that she was qualified for assignment to a vacant funded position at the time of her separation. I see no need to address this matter further, however, for the reasons stated below.

As indicated above, an agency's obligation to accommodate an employee under the ADA arises only when the employee has a "disability." The term "disability" is defined, for purposes of that legislation, as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. §§ 12102(2)(A).7 The term "major life activities" has been defined, in regulations issued by the Equal Employment Opportunity Commission (EEOC), as including the activities of "speaking" and "working." 29 C.F.R. §§ 1614.203(a)(3).8

In finding that the appellant had a disability, the administrative judge relied on evidence that the appellant's position "required constant communication with the public which aggravated her condition and gave rise to her excessive absenteeism." IDat 7-8. The Board has held, however, that the activity of working is the last of the "major life activities" defined in the EEOC regulations that is to be considered in determining whether an employee is disabled, and that it should be considered "only in the event that the individual is not substantially limited with respect to any other major life activity." Clark v. United States Postal Service, 74 M.S.P.R. 552, 559 (1997). Moreover, an employee's activity of working cannot be found to be substantially limited, and the employee therefore disabled under the ADA, solely on the basis of the employee's inability to perform the duties of a single position; instead, the employee must show an inability to work in a broad class of jobs. See Sutton v. United Airlines, 527 U.S. 471, 491 (1999).

I have indicated above that, under EEOC regulations, "major life activities" also include the activity of "talking." Clearly, the appellant's talking activity is impaired by TMJ. It is not clear, however, that the activity is impaired "substantially." In a decision issued after the administrative judge issued his decision in this case, the Supreme Court has noted that the word "substantially," in the phrase "substantially limits," suggests that such limitations must be "considerable," and that the activity must be limited "to a large degree." Toyota Motor Manufacturing, Kentucky v. Williams, 122 S. Ct. 681, 691 (2002). It also has indicated that, in determining whether an impairment substantially limits a major life activity such as the one at issue here, "the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job."9

As noted above, the record in this case includes evidence regarding the effect the appellant's TMJ has had on her ability to perform the responsibilities of her former position. It does not, however, include evidence relevant to the issue addressed in the recent Supreme Court decision cited above. That is, it does not include evidence regarding the effect of the appellant's impairment on her ability to "perform the variety of tasks central to [her] daily li[fe]." I therefore am unable to determine, on the basis of the present record, whether the appellant's medical condition substantially impairs her "major life activity" of speaking, and whether, accordingly, she is "disabled" for purposes of the ADA.

For the reasons stated above, I would remand this appeal to the Atlanta Regional Office so that the administrative judge could provide the appellant with an opportunity to present further evidence and argument supporting a finding that she has a "disability," for purposes of the ADA. I also would instruct the administrative judge to consider, if he found on remand that the appellant's medical condition did not substantially limit her "major life activity" of speaking, whether the appellant should be considered disabled as a result of a substantial impairment of her ability to work.10

1The record does not indicate whether the appellant was still employed at the GS-7 level when she made her April 1993 request.

2The agency has not objected to the finding of jurisdiction, and I see no error in it.

3The appellant also argues that the administrative judge should have sanctioned the agency for failure to respond properly to her discovery requests, and that he erred in finding that the penalty of removal was reasonable. PFR at 6, 8, 30-31, 62-70. I see no error in the administrative judge's rulings regarding discovery, however; and, because I would vacate the initial decision and remand this appeal for further consideration, I see no need to address the appellant's claims regarding the penalty.

4The Chairman's separate opinion in this case argues that the agency was under no obligation to accommodate the appellant's condition by reassigning or demoting her to another position, since the appellant did not expressly renew her request for this action after 1993, and since she did not specifically refer to her 1992 and 1993 requests in her petition for appeal, prehearing brief, or closing argument. I disagree. Nothing in the record indicates that the appellant intended to withdraw her request for permanent assignment to a more suitable position. Her subsequent requests indicate only that, as the agency denied or failed to act on her requests, she became increasingly willing to accept details and other temporary measures unless or until a suitable position to which she could be permanently assigned became available. E.g., Appeal File, Tab 27, Appellant's Ex. F-16 (appellant's statement that being "temporarily detailed to a position other than a service representative until a decision is made [regarding a more permanent assignment] would prevent further medical and financial hardships"). Moreover, evidence that the appellant was promoted sometime after September 1992 is immaterial, since the record does not indicate that any such change reduced the amount of talking required of the appellant, or that it otherwise affected her need for accommodation. In addition, nothing in the agency's file, its statement of the issues, or its closing argument indicates that the agency ever viewed the appellant's request as limited to temporary assignments; the initial decision includes no finding that the request was limited in this way; and the appellant's submission of her requests for reassignment or demotion, along with evidence regarding vacant positions for which she qualified, shows that the appellant never abandoned those requests. Id., Tabs 7, 16; Hearing Transcript at 535-39. Finally, I note that the agency had an obligation, once the appellant applied for disability retirement, to determine whether there was a suitable position to which she could be assigned. See 5 U.S.C. §§ 8337(a).

5 While the appellant does not appear to have requested reassignment to the Case Assistant position described above, the record shows that the position was not available until after she filed her application for a disability retirement annuity. Agency File, Tab 29, Ex. EE at 1. See Okleson v. United States Postal Service, 90 M.S.P.R. 415, 10 (2001) (agency's obligation to accommodate employee's disability continues through date of employee's separation); cf. Savage, 36 M.S.P.R. at 152 n.2 (agency can be expected to know more than employee about availability of positions that can be used to accommodate employee's disability).

6The Chairman's separate opinion argues that a finding that the agency was not obligated to make the accommodations the appellant requested is consistent with the approval of the appellant's application for disability retirement. I do not find this argument persuasive. While that approval is consistent with the certification of the appellant's supervisor that reassignment was "not possible," Appeal File, Tab 27, Appellant's Ex. B-2 at 2, this consistency means nothing if the supervisory certification is inaccurate. Furthermore, the certification was signed on January 5, 2000, id., more than 6 months before the appellant's separation. The Board has held that an agency's obligation to accommodate an employee's disability does not end with the employee's filing of a disability retirement application, and that it instead extends from the date on which the employee requested accommodation until the date on which the agency separated the employee. Okleson, 90 M.S.P.R. 415, 10.

7Although an employee also may have a "disability" if she has "a record of such an impairment," or if she is "regarded as having such an impairment," 42 U.S.C. §§ 12102(2)(B), (C), I see no indication that the appellant's claim of disability is based on a claim that either of these circumstances exists.

8 The Supreme Court has noted that no agency has been given the authority to issue regulations interpreting the term "disability," as that term is used in the ADA. Toyota Motor Manufacturing, Kentucky v. Williams, 122 S. Ct. 681, 689 (2002); Sutton v. United Air Lines, 527 U.S. 471, 479 (1999). In the absence of challenges of the validity of the EEOC's regulations, however, it has assumed that those regulations are valid and reasonable. Williams, 122 S. Ct. at 689.

9 While the Supreme Court used this language in addressing a claim related to the major life activity of "performing manual tasks," and not to that of speaking, its reasoning is based on terminology and other considerations that would appear to be applicable generally to major life activities other than that of working. See Williams, 122 S. Ct. at 691 (referring, inter alia, to the meaning of "substantial" and "major," and to the need to interpret those terms "strictly to create a demanding standard for qualifying as disabled").

10 Cf.Williams, 122 S. Ct. at 692 (Court stated that it was "hesitant" to hold that working could be a major life activity "[b]ecause of the conceptual difficulties inherent in the argument" that it could be, but noted that it did not need to "decide this difficult question" in Williams).

Statutes Cited

29 USC 791
42 USC 12112
5 USC 8337
5 USC 8337(a)
42 USC 12102(2)(A)
42 USC 12102(2)(B)
42 USC 12102(2)(C)

Regulations Cited

5 CFR 1200.3(b)
5 CFR 1200.3(d)
29 CFR 1614.203(c)(1)
29 CFR 1614.203(g)
29 CFR 1614.203(c)
29 CFR 1614.203(a)(3)

Cases Cited

85 MSPR 388
36 MSPR 148
79 MSPR 46
80 MSPR 648
74 MSPR 552
527 US 471
122 S. Ct. 681
90 MSPR 415

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