0120055064
10-17-2007
Michael Gill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Gill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200550641
Agency No. 1K211008604
DECISION
On July 15, 2005, complainant filed an appeal from the agency's July 1,
2005 final decision 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 deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission VACATES the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a mailhandler at the agency's Incoming Mail Facility in Linthicum,
Maryland. Complainant filed a formal complaint dated October 29, 2004,
alleging that he was discriminated against on the basis of disability
(FMLA Conditions) when:
1. On July 16-17, 2004, complainant did not receive a
monetary award for good work performance.
Complainant filed a second formal complaint dated December 29, 2004,
alleging that he was discriminated against on the basis of disability
(diabetes) when:
2. On September 18, 2004, complainant's power equipment driving privileges
were revoked.
In a January 21, 2005 acceptance letter, the agency notified complainant
the two complaints were consolidated for processing. 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). In accordance with complainant's request,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that he was subjected to
discrimination as alleged.
In its final decision dated July 1, 2005, in pertinent part, the
agency found that complainant failed to establish a prima facie case of
disability discrimination since he failed to show that he is substantially
limited in any major life activity.
On appeal, complainant provides a June 30, 2005 letter from his
ophthalmologist stating that currently complainant's visual field test
is without defects and noting his central vision is 20/20 or better in
each eye. Complainant claims that this information shows that there is
nothing wrong with his eyes and he states the agency still refuses to
allow him to get his license back.
ANALYSIS AND FINDINGS
To bring a claim of disability discrimination, complainant must first
establish that he is an individual with a disability within the meaning
of the Rehabilitation Act. 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 a record of such impairment; or (3)
is regarded as having such an impairment. See 29 C.F.R. � 1630.2(g).
Major life activities include functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(j). Sitting, standing,
lifting, reaching, and eating (including the ability to metabolize food)
are also recognized as major life activities. See Interpretive Guidance
on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. �
1630.2(i).
The determination as to whether an individual has an impairment which
substantially limits a major life activity is made on a case-by-case
basis. See Interpretive Guidance on title I of the Americans
With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(j). 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). Factors considered in determining whether an
individual is substantially limited in a major life activity include:
the nature and severity of the impairment; the duration or expected
duration of the impairment; and the permanent or long-term impact,
or the expected long-term impact of or resulting from the impairment.
29 C.F.R. � 1630.2(j)(2).
In the present case, complainant states that he has type II diabetes,
a condition that he states is permanent. In his affidavit, complainant
states that he takes insulin and other medication to control his diabetes.
The record contains Certification of Health Care Provider submitted
as support for FMLA leave in which complainant's doctor notes that
complainant's diabetes is a lifelong condition which commenced in
January 2000. The doctor notes that complainant follows up with an
endocrinologist for the condition and has eye and feet examinations with
diabetes specialists. The doctor states that as a result of his diabetes,
complainant suffers from morbid obesity, Gastroesophageal Reflux Disease,
sleep apnea, vision problems, high or low blood sugars, syncopy, and vaso
vagel episodes. Complainant states that he has had several low blood
sugar episodes at work and at home and states that he has to eat something
right away when this happens or he could go into diabetic shock. In an
October 2, 2004 letter, complainant notes one incident at work when his
blood sugar was low and he passed out and hit his head on a bathroom wall.
Additionally, complainant states that his vision gets blurry when his
sugar gets too high. The record also contains a Temporary Light Duty
Assignment form signed by complainant's ophthalmologist on September 24,
2004, stating that complainant has 20/20 central vision in both eyes
and temporal loss visual field bilaterally.
While it is clear that complainant's diabetes constitutes a physical
impairment, we find the record does not contain sufficient information
to determine whether complainant's diabetes substantially limits a major
life activity. While the record shows that complainant is a diabetic
who suffers many symptoms from his diabetes, the record is devoid
of any information regarding how frequently complainant, in fact,
experiences episodes of hyperglycemia and hypoglycemia, to include
the duration of such episodes. The record also lacks any account of
the type of symptoms complainant experiences during these episodes,
nor their frequency or severity. Although complainant described one
incident in October 2, 2004, when his blood sugar was low and he passed
out, the record lacks information detailing the frequency with which
complainant experiences this complication, nor any description of its
severity, to include whether complainant must seek emergency medical
attention or requires hospitalization.
Moreover, while complainant states that when his blood sugar gets too low,
he must eat something immediately, the record is completely devoid of
information as to whether complainant must adhere to a restricted diet
and/or a strict eating schedule, or the measures he must take regarding
the medical consequences, if any, associated with what he eats, how much
he eats, and when he eats.
The Commission has found that some individuals with diabetes mellitus
(type I diabetes) 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 Carr v. United States Postal Service,
EEOC Appeal No. 01A43665 (May 18, 2006) (citing 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 id. (citing Medina v. U.S. Postal Service, EEOC Appeal No. 01990709
(February 15, 2000)). Moreover, the Supreme Court has held that, in
determining whether a claimed disability is substantially limiting, we
must examine the complainant's condition as it exists after corrective or
mitigating measures used to combat the impairment are taken into account.
See Sutton v. United Airlines, 527 U.S. 471, 483 (1999). Therefore, we
must consider the beneficial effects of complainant's diabetes medication
in determining whether his diabetic condition substantially limits him
in a major life activity. See Carr, EEOC Appeal No. 01A43665. We must
also consider whether the mitigating measure itself substantially limits
a major life activity. Id.
Although the record contains some information indicating complainant
has developed long-term complications associated with his diabetes,
the record is devoid of information as to whether these complications
themselves affect a major life activity. Therefore, we find that the
record is inadequately developed to determine the effect of complainant's
diabetes on his major life activities. See id. There is no question but
that complainant bears the burden of proof in demonstrating that he is
substantially limited in a major life activity because of his diabetes.
See Murphy v. United Parcel Service, 527 U.S. 516, 521-523 (1999).
On the other hand, the agency is charged with the obligation to develop
an adequate investigative record. See id.
Specifically, the requirement that an agency investigate complaints
of discrimination is codified at 29 C.F.R. � 1614.108. The agency
has a duty to develop an impartial and appropriate factual record upon
which to make findings on the claims raised by the written complaint.
See id. An appropriate factual record is one that allows a reasonable
fact finder to draw conclusions as to whether discrimination occurred.
See 29 C.F.R. � 1614.108(a). The investigator is required to conduct
a thorough investigation--identifying and obtaining all relevant
evidence from all sources regardless of how it may affect the outcome.
EEOC Management Directive (MD)-110, p. 6-8 (Nov. 9, 1999). Therefore,
an investigator must exhaust those sources of information likely to
support the positions of complainant and the agency. Id.
In particular, in investigating a claim of disability discrimination,
the agency must ensure that the investigator "asks the right questions" of
complainant, ones designed to elicit pertinent evidence on the threshold
issues of: whether complainant has an impairment; whether it affects a
major life activity; and whether it substantially limits a major life
activity. See Carr, EEOC Appeal No. 01A43665.
Here, for the reasons set forth above, we find that the agency failed to
develop an adequate evidentiary record because it contains insufficient
information upon which to determine whether complainant is substantially
limited in a major life activity because of his diabetes. Accordingly,
we VACATE the agency's final decision, and we REMAND the complaint back
to the agency to undertake a supplemental investigation as set forth in
the ORDER below.
ORDER
1. Within 45 calendar days of the date that this decision becomes
final, the agency shall undertake and complete a supplemental
investigation of this complaint, by obtaining affidavits and relevant
documentation on the following as it existed on July 16, 2004, and
September 18, 2004, the dates of the discriminatory incidents at issue:
A. The extent of complainant's limitations, problems, or restrictions
in the major life activities of eating and caring for oneself that
result from his diabetes. The information obtained should describe
any dietary restrictions, including whether he must eat on a schedule
and the medical consequences of what he eats, when he eats, and how much
he eats. The investigation should also include detailed information about
complainant's regimen for monitoring his blood sugar. If complainant
experiences limitations only under certain circumstances, the agency
should find out what those circumstances are and how often they occur.
The agency shall assess all information obtained to determine whether
complainant is substantially limited in the major life activities of
eating or caring for oneself.
B. The extent of complainant's limitations, problems, or restrictions, if
any, in other major life activities resulting from his diabetes. Examples
of other major life activities include: walking, standing, speaking,
breathing, lifting, seeing, hearing, sleeping, learning, thinking,
concentration, controlling bodily waste, bending, stooping, twisting,
reaching, pushing, pulling, and climbing. The information obtained
should include any limitations on how long or how much complainant can
accomplish activities and limitations in the circumstances or
way he can do activities. This information should include evidence
about any complications, such as neurological or other damage, that
complainant has developed as a result of his diabetes. If complainant
experiences limitations only under certain circumstances, the agency
should find out what those circumstances are and how often they occur.
The agency shall assess all information obtained to determine
whether complainant is substantially limited in a major life activity.
C. When making the determinations in A and B above, the agency is
directed to ascertain how complainant's use of medications (e.g.,
insulin), including any side effects, impacts his limitations, problems,
and restrictions.
2. The agency is directed to ask complainant to produce or provide
access to evidence in support of his contentions regarding his diabetes
and its impact on his major life activities. That evidence may include
documentary evidence, such as doctor's notes or medical records,
or potential witnesses to contact, such as medical personnel, family
members, friends, or co-workers.
3. The agency shall instruct the investigator to compile the above
information into an investigative report, and transmit it to the agency
within 45 days of the date that this decision becomes final. No later than
50 days of the date that this decision becomes final, the agency will
insure that complainant is in receipt of a copy of the report, and also
provide a copy to the Compliance Officer referenced below. Thereafter,
within 60 days of the date this decision becomes final, the agency shall
issue a new final decision providing complainant with the appropriate
appeal rights. A copy of the new final decision must be provided to the
Compliance Officer as referenced below.
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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 17, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120055064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036