David Elias, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 27, 2009
0120070808 (E.E.O.C. May. 27, 2009)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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