Employee Illegally Regarded as Disabled

The EEOC reversed a final agency decision and upheld its own administrative judge's (AJ's) finding that a temporary social worker was fired illegally after the VA insisted that the medication she took rendered her unable to drive, despite evidence to the contrary. Dremmel v. Dept. of Veterans Affairs, EEOC Appeal No. 0720060044 (7/16/08). The appellant's personal physician insisted that the medication she was taking for chronic pain - MS Contin - did not affect her ability to drive as her position required her to drive to veterans' homes within a 30-mile radius of the medical center. In its decision, the EEOC noted that Ms. Dremmel had performed well in prior positions where she was required to drive a car.

The case arose when two VA physicians insisted that the medication caused her to be unable to drive safely. As a result, the VA terminated Ms. Dremmel from her temporary position. However, the EEOC found that agency's insistence that she could not drive safely meant that it believed that she was substantially limited in her ability to work in a broad class of jobs for which driving was a requirement. The Commission also overruled the VA's argument that the appellant had failed to qualify for a permanent position because when she had been hired for a temporary position, she was never informed that she had to qualify for a permanent position. Thus the EEOC held that the VA's purported reason for terminating the appellant, her failure to obtain certification for a permanent position, "was a pretext for disability discrimination" as the VA regarded Ms. Dremmel as substantially limited in the major life activity of working:

"Based on its erroneous conclusion that complainant could not drive, we find the agency not only regarded her as being unable to perform the job she held as a social worker at the agency, but also regarded her as being unable to do any jobs requiring driving."

Because the appellant had successfully performed her duties, the EEOC found that she was a qualified individual with a disability. The Commission also upheld the AJ's decision to hold a video conference hearing after providing advance notice to the parties and not receiving any objections. While the EEOC did not find retaliation, it awarded the appellant $67,664 in attorney fees, back pay, and compensatory damages of $15,000.

* 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.

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