0120070808
05-27-2009
David Elias, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
David Elias,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070808
Hearing No. 340200500472X
Agency No. 4F913010704
DECISION
On November 23, 2006, complainant filed an appeal from the agency's
October 23, 2006 final order concerning his equal employment opportunity
(EEO) complaint alleging 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(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
On or about December 23, 2003, complainant, an applicant for employment,
filed an EEO complaint alleging that he was discriminated against on the
basis of disability (Type II Diabetes) when, by letter dated October 23,
2003, he was advised that he was medically disqualified for the position
of Immigration Inspector, GS-1816-07, located in Calexico, California.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on November 9, 2005 and
issued a decision on September 19, 2006, finding no discrimination.
Complainant did not assert that he was an individual with a disability;
only that the agency wrongly perceived him as such. However, the AJ
found that the agency only perceived complainant as unable to perform the
essential functions of the Immigration Inspector position. Therefore,
the AJ found that complainant was not regarded as substantially limited
from working in a broad class of jobs, and thus was not regarded as
substantially limited in working.
The AJ further found complainant was not a qualified individual with a
disability because he could not perform the essential functions of the job
without being a "direct threat" to himself or others. In that regard,
the AJ found complainant was found medically unsuitable as determined
by three layers of review because of his "less than ideal" control of
his diabetes, which could be exacerbated by the Immigration Inspector
position's unpredictable hours and variable breaks, and therefore
could lead to problems with his cognitive function, concentration,
and vision. Indeed, complainant's medical record revealed that he was
already experiencing two of the effects of diabetes. Specifically,
complainant had microalbumin in his urine, which is a sign of early
diabetic kidney damage, and diabetic retinopathy. Accordingly, the AJ
found the agency acted reasonably when it determined that complainant's
diabetes represented a significant risk of substantial harm if he was
placed into the position.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ misconstrued the evidence
when she determined that complainant's diabetes was uncontrolled,
because his hemoglobin A1C level indicated his blood levels were in the
"fair" or "good" ranges according to the American Diabetes Association.
Complainant maintains that the agency does not medically qualify
individuals with uncontrolled diabetes, and that it made this decision
based on fears and stereotypes.
In response, the agency maintains that complainant's diabetes was
uncontrolled at the time of his application, as evidenced by both his
glucose levels and his hemoglobin A1C test. The agency denies that
it perceived complainant as disabled, as evidenced by testimony of the
Medical Policy and Program Specialist, who reviewed the agency's findings
and testified that complainant could be eligible for other law enforcement
positions which were not as physically arduous. The agency noted that
Reviewing Medical Officers testified that the agency has qualified many
Type II Diabetics for the Immigration Inspector position in the past.
Finally, the agency stands by its decision, stating that complainant was
not qualified for the position because he could not perform the essential
functions of the position without being threat to himself or others.
In that regard, the agency stated complainant's uncontrolled diabetes
makes him more susceptible to blurred vision, lapses in judgment, and
frequent urination. The agency contends that complainant could not
accomplish the essential functions of the Immigration Inspector position
without significant risk to himself and others.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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).
For the purposes of this decision, we assume, without deciding, that
complainant is an individual with a disability.
We now 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. 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).
After a review of the record, we find there is substantial evidence in
the record showing that the agency satisfied its burden to establish that
placing complainant into the position would constitute a direct threat to
himself or others. Complainant suffers from Type II Diabetes. Diabetes
is a chronic condition resulting in elevated glucose levels in the blood.
On average, fasting blood glucose levels should be between 80-120 mg/dl.
Lewis v. Rumsfeld, Appeal No. 01A24984, 2004 EEOPUB LEXIS 4349 (2004).
According to the medical records in the file, complainant was tasked
with controlling his diabetes through medication, diet, and exercise.
At the time of complainant's application to the position, his diabetes
was not under control. The record reveals that in the three years prior
to his application, complainant's glucose readings ranged from 82 mg/dl
to 388mg/dl. Another way to measure blood glucose is through the use
of a hemoglobin A1C test, which evaluates the average glucose in the
blood for the preceding 5-6 weeks. Complainant's A1C levels during
the same three-year period ranged from a low of 5.8 to a high of 9.8.
Although complainant contends that the American Diabetes Association finds
that a 7.1 is "fair" control, the record supports the agency's position
that as an average, the A1C level must be taken in context and understood
that for some period of time, complainant's A1C levels were over seven.
Most significantly, the record reveals complainant suffered from blurry
vision when his sugar became elevated, and he was also suffering from
some of diabetes more advanced problems, including diabetic retinopathy
and microalbuminuria. Complainant's own medical practitioner, when
responding to the agency's request for more information, confirmed that
complainant had poor control of his diabetes, and that he was suffering
from changes in kidney function. The record also reveals complainant
had difficulty complying with his medication regimen, as well as his
physician's guidance regarding diet and exercise during the three-year
period prior to his application. These factors did not instill confidence
in the medical review team that complainant's situation would improve.
Complainant's application was reviewed by a contract physician as
well as two Reviewing Medical Officers of Federal Occupational Health,
U.S. Public Health Service. These individuals reviewed the essential
functions and the physical demands of the position, which include
the ability to defend oneself from attack and irregular work hours,
and found that complainant would not have predictable access to breaks
for food or to use the restroom. This would make him more susceptible
to fluctuating sugar levels, which could impair his judgment and cause
vision disturbances. Indeed, complainant had already experienced vision
problems while driving. Accordingly, we find that the AJ's decision
finding the agency satisfied its burden to establish direct threat is
supported by substantial evidence in the record.
This case can be distinguished from Harrison v. Department of Justice,
EEOC Appeal No. 01A03948 (July 30, 2003), where we found the agency
failed to show that complainant's diabetes constitutes a direct threat
to himself or others in the position of Special Agent. In Harrison, we
found the agency failed to conduct an individualized assessment because
it failed to take into consideration complainant's past work history,
and prior medical history. Here, the agency looked at both as part of its
assessment. Complainant's medical practitioner from the VA corroborated
the agency's medical findings. Furthermore, there was no evidence that
complainant, who would be required to carry a handgun in the Immigration
Inspector position, had ever worked with a handgun in any prior security
position such that his abilities could be assessed. The individual in the
Harrison case had not had complications from his diabetes, which had been
controlled. As explained above, this is not the case for complainant.
Furthermore, in this case there is significant evidence that the agency
has medically qualified over 100 suspected diabetics for the Immigration
Inspector position. Finally, we note that complainant has not requested
nor identified any accommodation which would reduce the threat to himself
or others and enable him to perform the essential functions of his job.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 27, 2009
Date
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0120070808
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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