When the agency / employer comes after you by saying your disability makes you unfit for work,
or not medically qualified for this position, and has the medical data to back up this claim, you
are in serious trouble of losing your job.
Being prepared to challenge the medical opinions with professional medical opinions of your own, is one way to
fight back, but it may not be enough to convince the AJ from the EEOC that you have any valid rights.
Your defense might have been better to seek disability, rather than continue working at your position, especially when you are such a high risk.
A secondary topic of this post is concerning the epidemic type II diabetes.
Harold S. Henderson
Complainant,
v.
John E. Potter,
Postmaster,
United States Postal Service,
Agency.
Appeal No. 01200624871
Agency No. 4H335004505
Hearing No. 150-A5-0649X
DECISION
On March 1, 2006, complainant filed an appeal from the agency’s February
2, 2006 final order concerning his April 20, 2005 equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq., on the bases of race (African-American), disability
(perceived and Type II Diabetes Mellitus), and age (D.O.B. 04/29/59) when
on or about February 2, 2005, the agency notified complainant that he
was not medically qualified for the position of Mailhandler. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency’s final
order.
At the conclusion of the EEO investigation, the agency provided
complainant 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. Thereafter, following the
agency’s November 17, 2005 motion for a decision without a hearing, the
AJ issued a decision without a hearing. The agency subsequently issued
a final order adopting the AJ’s decision which concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
At all times relevant to this complaint, complainant was employed
with the agency as a mail processing clerk at the Tampa Processing
& Distribution Center. Complainant applied for reassignment to the
Mailhandler craft. Some time in late January 2005, complainant was one
of fourteen applicants for reassignment to the position of Mailhandler
conditioned upon the successful completion of a medical assessment.
On January 26, 2005, the agency’s Occupational Health Nurse Administrator
(N1) interviewed complainant and requested that he submit medical
information pertaining to his glycohemoglobin levels related to his
diabetic condition and a statement by his treating physician as to
whether complainant was able to perform the functional requirements of the
Mailhandler position. In response, complainant’s treating physician (P1)
reported to the agency, inter alia, that: (1) P1 examined complainant
on January 26, 2005; (2) the onset of complainant’s Type II Diabetes
Mellitus (DM) occurred in August 1998; (3) as of December 24, 2004,
complainant’s HgbA1C level was 10.1%; (4) complainant’s “condition [is]
stable;” (5) complainant’s “prognosis [is] good;” and (5) complainant
has no physical restrictions.
The agency documented complainant’s responses to various questions
posed by N1 regarding his health as follows: Complainant’s then
current medical conditions included Gastroesophageal Reflux Disease
(GERD) and DM. Complainant was currently seeing a health provider for
his medical conditions. Complainant’s DM is permanent. Complainant’s
last office visit was approximately one month prior to the agency’s
medical assessment. Complainant was currently taking the following
medications: (1) Gluberide; (2) Metformine; and (3) Omeprazoline.
Complainant must monitor his blood sugars and his diet. Complainant has
no work restrictions and is able to perform all the duties and physical
requirements of the job. There are no mental or physical conditions
that interfere with usual daily activities.
The agency also documented the following information obtained by the
physical examination conducted by the agency’s Associate Medical Director
(AMD): (1) complainant has a 30% total service-connected disability
rating, which includes a 10% rating for left ankle injury related to
calcium deposits secondary to multiple sprains, a 10% rating related
to his right toe bunion removal in 1999 and a 10% rating for GERD; (2)
complainant does not have any groin pain; (3) complainant currently works
as a Mail Processor and has prolonged standing and walking; (4) in 2002,
complainant had a left knee MRI for pain which showed calcium deposits.
There was a reduction of pain after complainant lost some weight; (5)
complainant was diagnosed with DM in about 2000. He takes Gluberide
and Metformine for DM and Ornerprazoline for GERD; (6) complainant is
currently being treated for GERD and DM; (7) despite his GERD and DM,
he considers himself to be in good health; (8) according to complainant,
he does not have any medical limitations despite his diagnosis of GERD
and DM.
On February 1, 2005, AMD issued complainant’s “Medical Assessment
Determination” as follows:
Medical Assessment Determination: [Complainant] is a 45 year old
gentleman applying for a job as a Mailhandler. He has a history of
diabetes. A Hemoglobin A1C performed on January 27, 2005 reveals a
level of 10.1. This is above the recommended reference level of 6.7.
He is also noted to have two plus glucose in his urine. His serum
glucose level is 242.
Recommendation: Because of the Hemoglobin A1C level as well as glucose
in the urine, [complainant] is not medically qualified at this time for
this position.
Complainant disputed AMD’s conclusions and provided additional lab
results to N1.2 On March 25, 2005, N1 attended a meeting with complainant
where it was agreed that the Medical Director (MD) would conduct his own
review of AMD’s medical assessment. Following his review, MD concurred
with AMD’s Medical Assessment Determination. Specifically, MD explained
that he reviewed the January 27, 2005 abnormal glycohemoglobin results,
the January 26, 2005 interview by N1, the completed medical form received
on February 4, 2005, from P1, and the February 1, 2005 Medical Assessment
Determination issued by AMD. MD further explained that AMD concluded that
complainant was medically unsuitable for the position of Mailhandler due
to the fact that “the Mail Handler craft is [the agency’s] heaviest duty
craft and complainant’s DM was uncontrolled, placing him at substantial
risk of major imminent harm to self or others should he have assumed
the position of Mail Handler.” MD further concluded that he found no
“deviation from standard operating procedures regarding change of craft
where during individualized assessment the applicant’s abilities are
matched to the essential job requirements of the very heavy manual labor
and safety-sensitive craft of mail handler.”
On May 31, 2005, N1 sent MD the following email:
I have a current part-time clerk who has applied for a change of craft
to a career mail handler position. He is a diabetic and submitted
lab work that revealed his HgbA1C to be greater than 9.0. He doesn’t
feel he should be held to the same standards as a new hire candidate
(in the eMAP booklet it states a diabetic must show his condition is
under control with a HgbA1C of
