What appears to be missing is investigations on the agencies part, while the complainant seems to have a very clear and medical condition of disability as reported by medical physicians. While the complainant provided everything necessary, it appears it was not enough for the AJ to find in his favor in this diabetes mellitus claim for disability discrimination.
The record indicates that complainant was employed by the agency as
a Level EAS-16 PM at the agency’s Swan Lake, New York Post Office
(“facility 1”). On January 12, 2004, the agency posted a vacancy for
a PM position in the Augusta, New Jersey Post Office (“facility 2”).
On that date, complainant requested a reassignment to the PM position
at facility 2 as a reasonable accommodation. Complainant resided in
Pennsylvania, and facility 1 was 45 miles from his home, while facility
2 was located 22 miles from his home. On January 22, 2004, complainant
was notified that the agency’s Reasonable Accommodation Committee (RAC)
met to discuss his request for an accommodation to facility 2, but
the request could not be granted as complainant was already performing
the essential functions of the position. Investigative File (IF) at
Exhibit 6. On April 13, 2004, the agency’s Manager, Human Resources,
requested that complainant produce medical documentation of his diabetic
condition which would establish a disability under the Rehabilitation Act.
The documentation complainant provided stated that his diabetes was under
“fair control” and did not indicate that any major life activity was
substantially limited. IF at Exhibit 2. On May 6, 2004, the agency informed complainant that his accommodation
request for a transfer to facility 2 was denied as the medical
documentation was insufficient to establish that he was an individual
with a disability. The agency also found that complainant failed to
demonstrate how his request for a transfer would accommodate his diabetes.
IF at Exhibit 11. Complainant then informed the Manager, Human Resources
that his accommodation request was based on the shorter commuting time to
facility 2, and as such complainant was provided with another opportunity
to submit medical documentation demonstrating that he was an individual
with a disability. IF at Exhibit 14. IF at Exhibit 11. On May 26,
2004, complainant provided medical documentation from a physician, who
stated that “fatigue, drowsiness, frequent urination, dizziness and
sweating” were among the symptoms he might experience every so often
due to his diabetes, and that complainant would benefit if he were
transferred to a Post Office closer to his home. The physician also
stated that a shorter commute would lessen complainant’s stress level.
IF at Exhibit 15. On June 30, 2004, the Manager, Human Resources,
informed complainant that he had not provided sufficient medical
documentation to show that his medical condition substantially limited
any major life activities. As such, the Manager stated that she would
advise the selecting official to proceed with the selection for the
PM position at facility 2 based on normal criteria. IF at Exhibit 16.
Complainant then competitively applied for the PM position at facility 2,
but another applicant (female) was selected on July 9, 2004.
Believing he was a victim of discrimination, complainant sought EEO
counseling and filed a formal EEO complaint on August 21, 2004.
Subsequently, complainant requested a hearing before an EEOC
Administrative Judge (AJ). Pursuant to the agency’s Motion for a
decision without a hearing, the AJ granted the agency’s Motion and
issued a decision finding no discrimination. In the decision, the AJ
found that there were no genuine issues of material fact, and further
found that complainant failed to establish that he was an individual
with a disability under the Rehabilitation Act. As such, the AJ found
that complainant failed to establish a prima facie case of disability
discrimination. In addition, the AJ found that complainant failed to
establish a prima facie case of age discrimination, as the selectee for
the PM position was only about six (6) months younger than complainant.
Further, the AJ found that even assuming, arguendo, that complainant
established a prima facie case of discrimination based on sex, the agency
articulated legitimate, nondiscriminatory reasons for its actions. In so
finding, the AJ noted that complainant’s request for a non-competitive
reassignment to facility 2 was denied as the agency determined that
he was not disabled and thus not entitled to the reassignment as an
accommodation. Regarding the competitive non-selection, the AJ found that
the selectee chosen for the PM position at facility 2 was better qualified
based on her interview.
The agency’s final action implemented the AJ’s decision. Complainant has
not made any arguments on appeal addressing the AJ’s specific findings.
However, complainant made several comments regarding his diabetes,
specifically: (1) his diabetes causes him to have a schedule of injections
and dietary restrictions; (2) the agency did not engage in the interactive
process regarding his request for reasonable accommodation; (3) the agency
did not change his personnel designation to reflect his diabetes until he
submitted medical documentation; and (4) the agency claimed that he was
not entitled to any accommodation which included testing his blood sugar,
taking insulin injections or glucose tablets during the workday as needed.
The agency has not responded to complainant’s appeal.
e initially address complainant’s allegation that the agency
discriminated against him when it denied his request for a non-competitive
reassignment to the PM position at facility 2, as a reasonable
accommodation for his diabetes. We determine that the instant complaint
is most properly viewed as a claim of denial of a reasonable accommodation
for a diabetic condition.
An impairment is
substantially limiting when it prevents an individual from performing a
major life activity or when it significantly restricts the condition,
manner or duration under which an individual can perform a major life
activity. 29 C.F.R. § 1630.2(j). The individual’s ability to perform the
major life activity must be restricted as compared to the ability of the
average person in the general population to perform the activity. Id.
In the instant case, we find that the record is undisputed that
complainant has type I diabetes (diabetes mellitus), a permanent
incurable condition in which blood levels of glucose are abnormally
high because the body does not release or use insulin adequately. See
Surprenant v. U.S. Postal Service, EEOC Appeal No. 01996186 (July 26,
2001), request for reconsideration denied Individuals with diabetes
mellitus produce little to no insulin, and thus must regularly inject
it in order to control blood sugar levels. Id. Uncontrolled, or
poorly controlled, diabetes can destroy the kidneys, cause blindness,
and precipitate a variety of cardio-vascular diseases. As such, we find
that due to his diabetes mellitus, complainant has a physical impairment.
In addition, we find that the record does not contain sufficient evidence
to determine whether complainant’s diabetes substantially limits a major
life activity.
Based on the medical assessments of complainant’s diabetic condition,
as well as his own statements, we find that the record reflects that
he is an insulin-dependent diabetic who suffers many symptoms from his
diabetes. While the record does not reflect that complainant is on an
insulin regimen consisting of pre-meal and bedtime insulin injections
daily, his physician stated that he would benefit from a shorter commute.
Complainant’s physician also noted complainant’s diabetes led to fatigue,
drowsiness, frequent urination, dizziness and sweating, and that his
stress level would decrease with a shorter commute. Complainant’s own
statements indicate that his diabetes causes him to have a schedule
of insulin injections and he must eat at certain times during the day,
leading to the conclusion that he could suffer the effects of his diabetes
during the longer commute to work.
While clearly complainant’s diabetes affects his ability to care for
himself and his eating, it is unclear to what extent his condition impacts
these major life activities. The record is devoid of any information
regarding how frequently complainant, in fact, experiences episodes
of dizziness, fatigue and drowsiness, 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 the May 26 2004 medical statement describes several
symptoms of his diabetes and associated complications, the record is
devoid of information detailing the frequency with which complainant
experiences these complications, nor any description of their severity, to
include whether the shorter commute complainant requested would alleviate
or decrease many of the symptoms he may suffer due to his diabetes.
Moreover, outside of complainant’s statement that he must adhere to
a regimented eating schedule, the record is completely devoid 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 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 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 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. We must also consider whether the mitigating
measure itself substantially limits a major life activity.
Finally, we find that the record also lacks any information as to whether
complainant has developed any long-term complications associated with
his diabetes, or whether these complications themselves, if present,
affect a major life activity. We also find that the record lacks
information describing complainant’s limitations as they exist after
the use of mitigating measures to combat his diabetes. Specifically,
we find the record contains inadequate information as to the benefits of
a shorter commute, and what the effects of his longer commute would be
on his major life activities, given his diabetes. Therefore, we find
that the record is inadequately developed to determine the effect of
complainant’s diabetes on his major life activities. See Carr v. United
States Postal Service, EEOC Appeal No. 01A43665 (May 18, 2006). We also
find that the record is inadequately developed to determine whether the
reassignment to the Augusta Post Office and shorted commute requested
by complainant would adequately accommodate any disability he suffered
from due to his diabetes.
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. 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. An appropriate factual
record is one that allows a reasonable fact finder to draw conclusions
as to whether discrimination occurred. 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.
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 order, and we REMAND the complaint back
to the agency to undertake a supplemental investigation as set forth in
the ORDER below.2
1. Within ninety (90) 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 or about June 30, 2004,
the date of the discriminatory incident 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 that result 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. Complainant shall also provide
documentation regarding the accommodation he requested from the agency,
and the specific effects that the shorter commute to the Augusta Post
Office would have on his ability to manage the symptoms of his diabetes.
(3) The agency shall instruct the investigator to compile the above
information into an investigative report, and transmit it to the agency
within ninety (90) days of the date that this decision becomes final. No
later than thirty (30) days after receiving the report, the agency will
insure that the complainant is in receipt of a copy of the report,
and also provide a copy to the Compliance Officer referenced below.
Upon completion of the investigative report and receipt by complainant,
the agency shall again provide complainant with the opportunity to
request a hearing before an Administrative Judge or have the agency
issue a final decision.
