01A03948
07-30-2003
Andrew T. Harrison, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Drug Enforcement Agency), Agency.
Andrew T. Harrison v. Department of Justice
01A03948
07-30-03
.
Andrew T. Harrison,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Drug Enforcement Agency),
Agency.
Appeal No. 01A03948
Agency No. D-98-3495
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. For the following reasons, the
Commission reverses the agency's final decision.
ISSUE PRESENTED
The issue presented is whether complainant was discriminated against
when he was not hired by the agency because of his disability (diabetes).
BACKGROUND
In late 1997, complainant began the process of applying for a
position as a Special Agent, GS-1811-9/11/12, with the agency's Drug
Enforcement Agency. In January 1998, complainant received a tentative
offer of employment, subject to his successful completion of the
Special Agent applicant process, which included a panel interview,
medical examination, physical task test, psychological assessment,
urinalysis drug screening, polygraph examination, full-field background
investigation and a suitability determination. Complainant progressed
through the process, completing the panel interview, the psychological
assessment, and undergoing a medical examination (which presumably
included the urinalysis screen). At various points throughout the
process, complainant questioned agency officials regarding whether the
fact that he has had type-1 insulin-dependent diabetes mellitus since
the age of twelve would affect his chances of being hired by the agency.
A number of different individuals assured complainant that as long as
his condition was under control it should not pose a problem, and that
having the condition was not automatically disqualifying.
At the time of his application to the agency, complainant had been
employed since 1995 by the Rogers, Arkansas Police Department, and had
been serving, for approximately one year, as an undercover narcotics
detective, assigned to the 19th Judicial District Task Force that
operated in two counties. As part of that task force, he had conducted
surveillance, worked undercover, and been exposed to unfavorable working
conditions, such as 50-60 hour work weeks and adverse weather conditions.
In 1999, complainant was assigned to a DEA task force operating in his
area, and he claimed that he performed all the duties of a Special Agent,
without any accommodation or difficulty.
After the medical exam by a Public Health Service physician in Little
Rock, Arkansas, the physician, Dr. B, recommended complainant for
employment and sent his medical records to the Health Services Unit in
Washington, D.C. for a final review. The reviewing contract physician
for the Health Services Unit, Dr. A, questioned whether complainant's
condition of diabetes was compatible with the duties of a Special Agent
and asked complainant to have his personal physician provide more detailed
information. Complainant's personal physician, Dr. S, an endocrinologist,
provided a letter in which he stated that complainant had never been
treated in the emergency room or missed work due to a diabetic related
illness, and that his shot regimen currently consisted of four shots of
insulin per day.
During a telephone conversation, Dr. G, the Chief Medical Officer for
the DEA, informed complainant that the conditions under which Narcotics
Officers work would not be compatible with a dosage schedule of four shots
of insulin per day, and that complainant was medically disqualified from
hiring due to his condition and medication schedule. Although complainant
offered to change his medication schedule to two insulin shots per day
(a dosage schedule which he had successfully followed in the past), Dr. A
stated that this still would not be acceptable, citing the potential
risk to complainant of future medical complications associated with
diabetes. Dr. G stated that complainant would not be able to perform
surveillance and undercover work, due to the irregularity of the hours
and conditions, the lack of a �sterile environment,� and the uncertainty
that complainant would be able to have food and drink at regular hours.
He also was concerned that complainant would not be able to undertake
an overseas assignment, due to the lack of medical facilities in many
countries where the agency operates. Dr. G was concerned about the
risk of complainant experiencing hypoglycemia (low blood sugar), a
condition where complainant might suffer a loss of �mental sharpness�
and alertness. Complainant expressed to Dr. G his belief that he should
have been informed at the start of the process that his diabetes would
have disqualified him (despite what he had been told by various agency
individuals) and that if he had known this information up front, it would
have saved him the time, money and emotional investment he put into the
process, and his disappointment at not being hired.
Complainant sought EEO counseling and subsequently filed a formal
complaint on August 10, 1998, alleging that he was discriminated against
on the basis of disability (type-1 insulin-dependent diabetes mellitus)
when he was rejected for employment by the agency on August 13, 1998.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant had not been
discriminated against. It assumed in its analysis that complainant was
an �individual with a disability,� but found that he was not a �qualified
individual with a disability� because he posed a substantial risk to
himself or others, and could not perform the essential functions of the
job, surveillance and undercover work, with or without a reasonable
accommodation. Dr. A and Dr. G both concluded that complainant would
not be able to maintain a regimen of four insulin shots per day while
performing undercover and surveillance work. The FAD stated that while
complainant had argued that his work history showed that he could do the
essential functions of the position without a reasonable accommodation,
this history did not outweigh the �legitimate medical concerns associated
with his intensive insulin regimen.� Both agency doctors were concerned
with the risk of a hypoglycemic occurrence while on duty, which could
jeopardize complainant's health and the lives of any agents who would
be on duty with him. The FAD concluded that �[w]hile this was a close
case, it appears from the record that the medical concerns associated
with complainant's intensive insulin regimen are legitimate. Based on
the record, it is reasonable to conclude that complainant is unable to
perform the essential functions of a SA [Special Agent], with or without
reasonable accommodation and therefore is not a qualified individual
with a disability.�
On appeal, complainant contested the conclusions of the agency and stated
that he had maintained control of his condition for approximately ten
years using a two shot a day regimen of insulin, indicating that it
was possible for him to do so, contrary to the conclusions of Dr. A and
Dr. G. He also stated that he had been appointed to the agency's Task
Force in Fayetteville, Arkansas by the agency's Resident Agent in Charge,
and that his employing police department was not solely responsible for
the appointment, as the FAD assumed. He again maintained that he was
in peak physical condition and that his disease was controlled through
proper diet, exercise and insulin injections. Complainant conceded
that an overseas assignment would be unwise for him, due to the lack of
access to proper medical care in many countries, but he asserted that
all overseas assignments are voluntary, so that he could easily avoid
that contingency. The agency did not respond to complainant's arguments.
ANALYSIS AND FINDINGS
In order to claim the protections of the Rehabilitation Act, complainant
must first establish a prima facie case of disparate treatment disability
discrimination by showing that: (1) he is an individual with a disability,
as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual
with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) he was
subjected to an adverse personnel action under circumstances giving rise
to an inference of disability discrimination.
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has record of such impairment; or (3) is regarded as having such an
impairment. See 29 C.F.R. � 1630.2(g) (1)-(3). Major life activities
include functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). The term "substantially limits" means: unable
to perform a major life activity that the average person in the general
population can perform; or significantly restricted as to the condition,
manner or duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or duration
under which the average person in the general population can perform
that same major life activity. 29 C.F.R. � 1630.2(j)(1).
Determinations regarding whether a complainant is an individual with
a disability must be made on a case-by-case basis. See Bragdon
v. Abbott, 524 U.S. 624, 641-642 (1998). Therefore, complainant
cannot be considered an individual with a disability per se, simply
because he has been diagnosed with a certain condition. See Albertsons,
Inc. v. Kirkingburg, 527 U.S. 555, 565-566 (1999) (requiring analysis of
substantial limitation for individual with monocular vision); Murphy
v. United Parcel Service, 527 U.S. 516, 521-523 (1999) (requiring
analysis of substantial limitation for individual diagnosed with severe
hypertension); Sutton v. United Airlines, 527 U.S. 471, 483 (1999)
(requiring analysis of substantial limitation for two individuals who
were legally blind without corrective lenses). In determining whether
complainant suffers a substantial limitation to a major life activity,
the Commission must consider the nature and severity of the impairment,
the duration or expected duration of the impairment, and the permanent or
long-term impact resulting from the impairment. 29 C.F.R. � 1630.2(j)(2).
Additionally, the effects of any �[mitigating] measures - both positive
and negative - must be taken into account when judging whether that
person is �substantially limited.'� See Sutton, 527 U.S. at 482.
Diabetes mellitus is a disorder in which blood levels of glucose (a
simple sugar) are abnormally high because the body does not release
or use insulin adequately. Individuals with diabetes mellitus produce
little to no insulin at all and thus must regularly inject it in order to
control blood sugar levels. The primary problem controlling blood sugar
levels is the increased chance of overshooting, resulting in hypoglycemia
which can cause organs, specifically the brain, to malfunction or fail.
Commission precedent has found that some individuals with diabetes
mellitus are individuals with disabilities within the meaning of the
Rehabilitation Act, while others are not. In cases where the Commission
has found a substantially limiting impairment, the diabetes itself
has caused debilitating complications; medication has not successfully
controlled the condition; or the regimen involved with monitoring and
controlling the condition itself imposes a substantial limitation.
See Ortiz v. Social Security Administration, EEOC Appeal No. 01990911
(January 19, 2001), request for reconsideration denied, EEOC Request
No. 05A10357 (May 3, 2002). In cases where the Commission has not found
coverage under the Rehabilitation Act, individuals have failed to show
that the diabetes substantially limits them in a major life activity.
See Drummond v. Department of the Army, EEOC Petition No. 03990069
(March 6, 2000); Medina v. United States Postal Service, EEOC Appeal
No. 01990709 (February 15, 2000).
There is no dispute that complainant has diabetes. He was diagnosed with
the disease when he was twelve years old, and he states that for the last
fifteen years he has �never experienced any physical limitation due to
his diabetic condition.� He maintains �rigorous control� of his condition
through his regimen of four shots of insulin per day. Complainant carries
his medical supplies in a small medical bag (and stores his insulin
using small coldpacks), and checks his blood sugar four times a day.
Complainant testified that he takes four shots per day in order to more
closely mimic the natural insulin secretion, and that it allows him
greater flexibility in his eating schedule. He also stated that �without
food your blood sugar will not elevate, so if I miss an insulin shot and
miss a meal there would be no repercussions. It's as simple as this:
if I don't take insulin, I don't eat.� Complainant has no complications
from his diabetes, such as circulatory problems in his hands or feet, or
difficulties with his vision. We find that complainant has not shown that
he is an individual with a disability based on his diabetes. He has not
shown that he is actually substantially limited in a major life activity.
Indeed, by his own testimony, he asserts that he is not limited in any way
by his condition. Additionally, although complainant has had diabetes
since the age of twelve, the record does not contain enough information
about complainant's past medical history for us to conclude that he has
a record of having a substantially limiting impairment.
We do however, find that the agency regarded complainant as being
substantially limited in the major life activity of eating.<1> Both
Dr. G and Dr. A emphasized their belief that complainant needed a sterile
environment and a regular schedule which would enable him to eat and
take his shots on time. There was testimony by Dr. G that the agency has
never hired an individual with diabetes mellitus to be a Special Agent,
and that any current Special Agent who was diagnosed with diabetes was
automatically reassigned to either a Recruiting or Training position
to enable them to have access to the sterile environment and regular
schedule. Dr. G expressed concern regarding the availability of food
to complainant while on a stake-out, the irregular hours of the job and
the timing of when he eats. Dr. A and Dr. G regarded complainant as
unable to deviate from a set eating schedule, despite his evidence and
testimony to the contrary. While the agency doctors linked a sterile
environment to complainant testing his insulin levels and administering
an insulin injection, we note that this process is necessarily undertaken
at mealtimes and thereby intertwined with the major life activity of
eating.<2>
Having satisfied the first prong of the prima facie case for disability,
we turn to the second prong, whether complainant was a qualified
individual with a disability pursuant to 29 C.F.R. � 1630.2(m).
A qualified individual with a disability is one who has the skill,
experience, education and other job-related requirements of the position
in question, and who, with or without reasonable accommodation, can
perform the essential functions of the position. Id. Based on the
evidence in the record, we find that complainant was qualified for the
position in question, based on his Masters Degree in Criminal Justice,
his work history in law enforcement, his part time work as a college
professor, and his excellent physical condition.<3>
In determining whether an individual is qualified, an agency may require
as a qualification standard that an individual not pose a direct threat
to the health and safety of himself or others. Interpretive Guidance
of Title I of the Americans with Disabilities Act, Appendix to 29
C.F.R. Part 1630, � 1630.2(r). In order to exclude an individual
on the basis of future possible injury, the agency must show there
is a significant risk, i.e., a high probability of substantial harm;
a speculative or remote risk is insufficient. It must show more than
that an individual with a disability seeking employment stands some
slightly increased risk of harm. The burden of showing a significant
risk is on the agency. Selix v. United States Postal Service, EEOC
Appeal No. 01970153 (March 16, 2000). Moreover, such a finding must be
based on an individualized assessment of the individual that takes into
account: 1) the duration of the risk; 2) the nature and severity of the
potential harm; 3) the likelihood that the potential harm will occur;
and 4) the imminence of the potential harm. Appendix to 29 C.F.R. Part
1630, � 1630.2(r). A determination of significant risk cannot be based
merely on an employer's subjective evaluation, or, except in cases
of a most apparent nature, merely on medical reports. Rather, this
requires that the employer gather and base its decision on substantial
information regarding the individual's work and medical histories.
Mantolete v. Bolger, 767 F. 2d 1416, 1422-1423 (9th Cir. 1985).
The agency regarded complainant as being a direct threat to himself
through the assumption that future health harm would result if he changed
his shot regimen to less than four shots per day, and to himself and
others through the assumption that he will have a hypoglycemic episode
while on duty, imperiling his co-workers and fellow undercover officers.
The physician who examined complainant, Dr. B, recommended complainant for
employment based on his medical records and the physical examination. We
find that the reviewing physicians, Dr. A, and the Chief Medical Officer,
Dr. G, both engaged in generalized assumptions about complainant's
condition, and preconceived notions about how the condition will impact
his health currently and what the future consequences will or could be.
As Dr. G. wrote in his affidavit, �We are disqualifying him because
of his diabetes. If that's discriminating, we're doing it because
of concern for him and others.� Granted, many of the statements they
made about people with diabetes are true for many individuals who have
the disease. But they failed to take into account complainant's medical
history and work history and to look past the generalizations about what
it means to have diabetes when the decision was made to reject him for
employment as a Special Agent. See Surprenant v. United States Postal
Service, EEOC Appeal No. 01996186 (July 26, 2001); Selix, supra.
The concerns of the agency were twofold, and pertained to both present
and future harm. If complainant were hired and were on the four shots a
day regimen, both doctors feared that complainant would not be able to
test his blood sugars regularly due to the �adverse� conditions of an
undercover operation, and would not be able to eat regularly, thereby
increasing his risk of experiencing a hypoglycemic episode while on
duty, imperiling his co-workers and fellow undercover officers. But if
complainant were to change his dosage schedule to two shots a day, as he
had followed in the past, Dr. A and Dr. G both testified that that would
be unacceptable due to the potential for future health harm that could
result from medical complications associated with diabetes. On a dosage
schedule of two shots a day, the concern also was that complainant's
risk of hypoglycemic shock would be more significant, due to the larger
swings in blood sugar and longer time in between insulin injections.
And although both physicians emphasized that the risks would be even
greater if complainant were to change to a one shot a day regimen, there
is no evidence that complainant offered to do this, as he stated in his
affidavit that �a Type 1 diabetic cannot manage by this type regimen.�
Additionally, Dr. G expressed the fear that �if [complainant] changes to
one or two shots of insulin each day to be able to get into DEA, nothing
would prevent him from, after six months, getting a doctor's statement
saying he needed to go back to four times a day, and this concerns me.�
The agency did not present any evidence that would show why complainant is
prevented from taking four shots of insulin per day while he is engaged in
undercover work, nor did the agency physicians present evidence why this
would be true even in light of the fact of his successful performance
of an undercover position (aside from attempting to discount its
difficulty as it was local, not federal, undercover work). By engaging
in assumptions about complainant's experience with his health condition,
the agency officials failed to follow their own guidelines regarding
hiring a Special Agent with diabetes. The Physical Requirements
for the agency's Special Agent position state that diabetes mellitus
(or insipidus) is �generally considered disqualifying unless there is
substantial evidence that the applicant can perform the important tasks
and duties of a narcotics criminal investigator safely and efficiently
despite the conditions. Such evidence, if it exists, is usually found
in past work history, if the applicant has performed investigative law
enforcement effectively.� We find that the agency failed to follow
its own guidelines when evaluating complainant, and did not conduct an
individualized assessment of his condition.
Complainant presented testimony that he had never had complications from
his condition, had never been to the emergency room connected to his
diabetes, and had been performing undercover narcotics work at the time
of his application. Additionally, he was later appointed to an agency
task force to perform the exact work for which he applied. Complainant
also testified that he had worked for 24 hours straight with no adverse
results. Complainant further testified, as noted above, that if he were
in a situation where he needed to miss a shot he simply would not eat,
and that his four shot a day regimen allowed him great flexibility in his
eating patterns, and lessened the risk of experiencing a hypoglycemic
episode. There is also evidence in the record that complainant's work
history includes experience as a carpenter and as a painter. While the
record does not reveal if the painting company specialized in interior or
exterior painting, presumably, complainant would have worked outside as
well as inside, possibly in weather conditions that might not have been
ideal. It can also be said of many, if not all, carpentry work sites,
that a �sterile environment� is not the prevailing state. Complainant's
five years as a carpenter and painter indicate that he does not require
the conditions of his workplace to be pristine, or that he is unable to
perform work at which he would physically exert himself.
Complainant's own medical and work histories belie the assumption that
there existed a significant risk of harm to other agents while on the
job, even though there was a speculative risk involved. When complainant
offered to change his shot regimen to only two shots per day, noting that
he had managed his condition for ten years on a two shot a day regimen,
both Dr. A and Dr. G rejected that possibility, based on their knowledge
about the potential for future health harm to complainant, such as
death occurring ten to twenty years earlier than for the average person.
We note that such a generalized statistic is not necessarily true for
complainant, and is too remote a future circumstance to be considered a
direct threat, one factor of which is the imminence of the potential harm.
Complainant's successful work history and �rigorous control� of his
condition show that he is capable of performing the essential functions
of a DEA Special Agent; if it is not possible for him to meet the hiring
standards of the agency, then no individual with diabetes will ever be
able to satisfy the agency in order to be hired. Complainant is a person
who has been able to control his diabetes. He has the qualifications
to be a Special Agent and the work history to show for it. We find
that complainant is a qualified individual with a disability, and that
the agency has not shown that his diabetes constitutes a direct threat,
either to himself, or others. The agency improperly ended its processing
of complainant's application for employment and violated the provisions
of the Rehabilitation Act.
When discrimination is found, the agency must provide the complainant
with an equitable remedy that constitutes full, make-whole relief to
restore him or her to the position he or she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Adesanya v. U.S. Postal Service, 01933395
(July 21, 1994). With respect to this complaint, we find that complainant
should be placed back into the hiring process for a Special Agent so that
he may complete the steps which were not conducted. Complainant also
requested reimbursement for the expenses he incurred during the hiring
process, including travel to the interview and psychological assessment.
To avoid providing a remedy, the agency must show by clear and convincing
evidence that even absent discrimination, the complainant would not
have received the benefit sought. 29 C.F.R. �1614.501(c)(2); see Day
v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we reverse the agency's final
decision and remand this case to the agency to take remedial actions in
accordance with this decision and Order below.
ORDER
The agency is ordered to:
1) Within sixty (60) calendar days of the date this decision becomes
final, the agency shall place complainant back into the hiring process
at the point where he stopped, and complete any other remaining steps in
the process. If complainant successfully completes the hiring process,
he should then proceed to the DEA Training Academy. Complainant should
undergo a new physical examination so that the agency may ascertain
whether his health condition(s) has changed in the time period between
the filing of his complaint and the issuance of this decision. The agency
shall take into account complainant's work history as part of the Rogers,
Arkansas Police Department, his work history as a Federal Task Force
Officer at the agency's Fayetteville, Arkansas Resident Office, and any
other relevant work history when determining his medical suitability.
2) The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a causal relationship between the
agency's refusal to hire him based on his disability and any pecuniary
or non-pecuniary losses. Within fifteen (15) calendar days of the date
this decision becomes final, the agency shall give complainant a notice
of his right to submit objective evidence (pursuant to the guidance given
in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993)) in support of his claim for compensatory damages within forty-five
(45) calendar days of the date complainant receives the agency's notice.
The complainant shall cooperate in the agency's efforts to compute the
amount of compensatory damages, and shall provide all relevant information
requested by the agency. The agency shall complete the investigation
on the claim for compensatory damages within thirty (30) calendar days
of the date the agency receives complainant's claim for compensatory
damages. Thereafter, the agency shall issue a final decision on the
issue of compensatory damages in accordance with 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
3) If complainant successfully completes the hiring process and accepts
an offer of employment with the agency, the agency is directed to award
complainant back pay, with interest, less interim earnings, for all
wages and benefits lost between the date he would have reported for
duty in 1998, and the date he is hired. If he refuses the position,
then back pay is awarded from the date he would have reported for duty in
1998 had he been properly processed, until the date he declines an offer
of employment by the agency. The agency shall determine the appropriate
amount of back pay, interest, and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501(b), within sixty (60) days of the date complainant
either accepts or declines an offer of employment. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
4) If complainant is hired by the agency, he shall be reimbursed for
expenses incurred during the application process, only if other successful
applicants are also reimbursed for costs incurred in the hiring process.
Complainant shall provide documentation of his expenses, in this event.
5) The agency shall pay complainant attorney's fees and costs, if proven,
in accordance with the "Attorney's Fees" section of this order appearing
below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
POSTING ORDER (G0900)
The agency is ordered to post at its Fayetteville, Arkansas Resident
Office facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____07-30-03______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which
found that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at this agency.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Department of Justice, Drug Enforcement Agency confirms
its commitment to comply with these statutory provisions.
The Department of Justice, Drug Enforcement Agency supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law. The Department of
Justice, Drug Enforcement Agency has been found to have discriminated
on the basis of disability when an applicant for employment was
disqualified by physicians at the agency's Headquarters in Washington,
DC for employment based solely on his health condition. The Department
of Justice, Drug Enforcement Agency has been ordered to take corrective
action in the form of placing the applicant back into the hiring process,
and if he is hired, he shall receive back pay and all other benefits that
would have accrued had the discrimination not occurred. The agency was
also ordered to pay compensatory damages.
The Department of Justice, Drug Enforcement Agency will ensure
that officials responsible for personnel decisions and the terms and
conditions of employment will abide by the requirements of all Federal
equal employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The Department of Justice, Drug Enforcement Agency will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1 Eating was found to be a major life activity in Lawson v. CSX
Transportation, Inc. 245 F.3d 916 (7th Cir. 2001) (reversing the District
Court's grant of summary judgment for the defendant-corporation and
finding that the plaintiff-applicant provided sufficient evidence for a
jury to conclude that his type I insulin-dependent diabetes substantially
limited him in the major life activity of eating).
2 We note that the average person in the general population does not have
to significantly concern themselves with when and where they eat, and can
typically eat their choice of food in whatever quantities they desire.
A person with diabetes generally cannot ignore the details of his or
her diet without any regard for the consequences.
3 The record indicates that complainant is 5' 10" tall, weighs 178 pounds,
and that his exercise regime, in part, consists of running 3-4 miles
per day approximately 5 days a week.