0120172780
07-17-2018
Sandy E.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sandy E.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120172780
Hearing No. 570201500828X
Agency No. ARHQOSA14JUL02640
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 14, 2017 Final Order concerning an 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Relocation Specialist, GS-9, at the Army Community Service in Fort Bragg, North Carolina.
On September 12, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of physical disability (Diabetes and related health conditions) when:
On June 11, 2014, the Medical Coordinator, Camp Atterbury, and the Director, Individual Pre-Deployment and Development Center, notified him that his mobilization to Bagram, Afghanistan would be delayed; that he was released from further training and processing at Camp Atterbury Mobilization Site; and that he would be returned to his home location for medical reasons.
On April 17, 2014, Complainant was selected as a Civilian Workforce Volunteer for the position of Morale, Welfare and Recreation ("MWR") Specialist, which entailed a 1 year deployment to an active combat zone in Bagram, Afghanistan. The position was contingent on, among other things, a medical assessment to determine whether Complainant met the medical standards under the U.S. Central Command ("USCENTCOM") deployment directives. Under these directives, a Body Mass Index ("BMI") higher than 40 and diabetes treated with injectable medication were both considered "non-deployable" conditions. For high risk deployment locations such as Afghanistan, USCENTCOM Directives provided that a BMI of 35 or higher, when coupled with cardiovascular risk factors such as diabetes and sleep apnea, constituted a "non-deployable" condition. However, an individual with a "non-deployable" condition could still be deployed if he or she could provide a physician's waiver.
On June 7, 2014, Complainant reported to Camp Atterbury, Indiana for pre-deployment training. When asked, Complainant disclosed that he had diabetes, which he managed with injectable insulin that did not require refrigeration, and consulting a physician about twice a year. Also, prior to his arrival, Complainant submitted a May 5, 2014 pre-deployment medical report from his physician, providing the following diagnosis: insulin dependent diabetes (uncontrolled), sleep apnea (stable), hyperlipidemia (controlled, almost at goal), and chronic renal insufficiency (stable). The accompanying labs indicated Complainant had high blood sugar at 8.3. In addition, Complainant's Body Mass Index ("BMI") was calculated on site at Camp Atterbury as 44 BMI.
Complainant sought a waiver from the Medical Coordinator, Camp Atterbury ("MC"), a physician. After speaking with Complainant and reviewing his own doctor's report, MC believed USCENTCOM guidance prohibited her from granting Complainant a medical waiver. To verify her assessment, MC emailed the USCENTCOM Waiver Action Officer ("D1"), a physician. D1 agreed that Complainant had a "non-deployable" condition, and given that the deployment location was an "active combat zone," his conditions caused him to be a direct threat to his and others' safety. Complainant also met personally with D1. MC did not provide Complainant with a waiver, and he was transferred back to his position in Fort Bragg, North Carolina.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "the Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. On April 19 and 20, 2017, the AJ held a hearing, and subsequently issued a decision in favor of the Agency on July 26, 2017.
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
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, at � VI.B. (Aug. 5, 2015).
Our regulations permit the Agency to deny job assignments on the basis of disability where such an assignment would pose a direct threat. See 29 C.F.R. � 1630.2(r). A "direct threat" is defined as a "significant risk of substantial harm" that cannot be eliminated or reduced by reasonable accommodation. Interpretive Guidance of Title 1 of the Americans with Disabilities Act, Appx. 29 C.F.R. Part 1630, � 1630.2(r); Echazabal v. Chevron U.S.A., Inc., 536 U.S. 73 (2002); 29 C.F.R. � 1630.2(r). Where, as here, it is undisputed that the complainant is qualified for the position at issue, it is the "employer's burden to show that an employee posed a direct threat to workplace safety." Branham v. Snow, 392 F.3d 896 (7th Cir. 2005).
A direct threat must be based on an individualized assessment considering (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. Interpretive Guidance of Title 1 of the Americans with Disabilities Act, Appx. 29 C.F.R. Part 1630, � 1630.2(r). The individual assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Id. 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. 29 C.F.R. � 1630.2(r); see also Massingill v. Dep't of Veterans Affairs, EEOC Appeal No. 01964890 (Jul. 14, 2000).
The AJ thoroughly and properly applied the "direct threat" analysis in accordance with the Rehabilitation Act. While acknowledging that "no formal waiver request was ever made on Complainant's behalf," she determined that the Agency offered sufficient evidence that in this instance, the USCENTOCOM guidance was a "safety-related qualification standard [that was] job-related and consistent with business necessity." She emphasizes D1's credible testimony that he was not aware of any waivers being granted for individuals with diabetes requiring injectable insulin. D1 further testified that based on his knowledge of diabetes, the conditions in Afghanistan, including the type of medical resources in an active combat zone, along with his years of medical experience, and then weighing the various factors, Complainant could not be granted a waiver due to "non-deployable" conditions. The record also supports that MC and D1 met with Complainant and reviewed his bloodwork and comprehensive medical exam records completed by his physician, thereby satisfying the individualized assessment requirement for a "direct threat" analysis. The AJ also notes that Complainant offered no evidence that the result would have been different if a waiver request had been made on Complainant's behalf.
On appeal Complainant has not offered the objective evidence necessary for us to disregard the AJ's credibility determination for D1 and other witnesses. Moreover, Complainant does not dispute that he has diabetes that he manages using injectable insulin, as well as a BMI of 44, two automatic disqualifiers for deployment to an "active combat zone" according to D1. D1 clarified that if Complainant decreased his BMI in accordance with USCENTOCOM guidance, and could manage his diabetes with oral medication, he would likely qualify for a medical waiver. To the extent that Complainant argues that the Agency violated its own policies and procedures, such allegations are beyond EEOC enforcement jurisdiction. If Complainant wishes to pursue these allegations, he must do so through the Agency's administrative procedures.
Complainant's willingness to spend a year working in an active combat zone overseas is admirable. However, after carefully reviewing the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence supports the AJ's determination that Complainant has not proven discrimination as alleged. See Love v. United States Postal Serv., EEOC Appeal No. 01A04492 (Jul. 29, 2002) (finding medical documentation along with testimony by management were sufficient evidence to support the Agency's decision not to hire a complainant based on her disabilities causing a "direct threat"); Parker v. Dep't of the Navy, EEOC Appeal No. 01981917 (Nov. 23, 2001).
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 17, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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