can you work for TSA with type II diabetes?
The parties began settlement negotiations thereafter. Notably, prior
to executing the agreement, complainant’s counsel asked the agency’s
counsel whether the agency hired Transportation Security Screeners with
Type II diabetes. Agency counsel informed him that others with diabetes
were employed by the agency, diabetes was not “per se” disqualifying,
and complainant would have to pass the job-related medical assessment
like the other applicants. On September 27, 2005, the parties executed
the subject agreement. The agreement provided, in pertinent part, that
complainant would be restored to federal employment as a Transportation
Security Screener, upon passing:
(A) (4) . . . Phase 2 of the TSA screener assessment including a color
vision test; a job-related medical evaluation; a drug test; a physical
ability test; and a background check. Complainant agrees that he must
pass all components of Phase 2 before being reinstated as a Transportation
Security Screener.
On October 5, 2005, a physician certified that, based upon his
understanding of the job requirements and standards for Transportation
Security Screeners, complainant “is capable of performing the above
listed job tasks with no risks to [him]self, co-workers, or customers.”
On October 24, 2005, the agency medically disqualified complainant,
informing him by letter dated October 26, 2005. In the letter, the
agency stated, “[a]pplicants whose fasting blood sugar level is greater
than 126 are disqualified from being screeners for TSA.”3
By letter to the agency dated November 7, 2005, complainant alleged
that the agency was in breach of the agreement, and requested that the
agency specifically implement its terms. Therein, complainant explained
that the agency failed to restore him to duty, and he requested specific
performance or reinstatement of his complaint for further processing.
We base
this determination upon our finding that, as the matter is currently
presented, there is insufficient evidence in the record to determine,
among other things, the manner in which the agency applied the Medical
Guidelines for Transportation Screeners (Medical Guidelines) with diabetes
to complainant and the events surrounding the settlement negotiations.
Specifically, based upon the agency’s brief and accompanying affidavits,
the Commission cannot determine how the Medical Guidelines’ standard
was applied to disqualify complainant from the Screener position, how
that standard was applied with respect to other applicant Screeners, and
how the agency resolves situations where a permanent Screener develops
diabetes. In addition, with respect to the settlement negotiations, the
statements from the complainant’s and the agency’s counsel are ambiguous
as to precisely what questions were asked regarding diabetes and what
responses were given. We will address the need for more information as
to the aforesaid questions below.
In its brief on appeal, the agency refers to the Medical Guidelines for
Screeners with diabetes which state:
Accept with documentation of control (3 months) with diet and oral
medication (e.g., hypoglycemic agents) and the following, in relevant
part:
a. Fasting blood sugar = 126 mg/dl or hemoglobin A1-C within 6-8%
depending upon the laboratory’s definition of normal (emphasis added);
and
b. No history of documented hypoglycemia. [Individual must meet the
standards for fitness and must be monitored closely for all Coronary
Heart Disease risk factors.]
Disqualify with the following:
a. Frequent blood sugar irregularities;
b. Hemoglobin A1-C> 8 and/or fasting blood sugar >126 (emphasis
added);
c. Recent (e.g., 1 year) history of episodes of ketoacidosis, hypoglycemic
coma, or hyperosmolar coma (attain through current medical records); or
d. Signs or symptoms of target organ damage (e.g., eyes, kidney,
neurological system).
Applying said standard to complainant, the record reveals that
complainant’s fasting blood sugar level was 151. However, his hemoglobin
A1-C was 7.6%, which the Medical Guidelines indicate is within normal
range. Notably, the Medical Guidelines disqualifying factors are
Hemoglobin A1-C> 8 and/or fasting blood sugar >126. The Commission,
however, cannot ascertain how the agency applied said standard to
complainant and other Screener applicants. In this regard, the record
does not establish whether complainant was required to show Hemoglobin
A1-C> 8 or fasting blood sugar >126, a standard which complainant met;
or whether he was required to show Hemoglobin A1-C> 8 and fasting blood
sugar >126, a standard which complainant may not have met.5 Moreover,
the Commission cannot deduce from the record how the Medical Guidelines’
disqualifying factors were applied to other Screener applicants. In its
brief and accompanying affidavit, the agency reveals that, from June 7,
2004 to February 3, 2006, the agency placed 2,137 Screener applicants on
medical hold for diabetes-related reasons.6 While the agency provides
information regarding the 2,137 screener applicants, it fails to specify
what type of medical documentation was required from the 746 applicants
who resolved their issues and how the Medical Guidelines’ standards were
applied to these applicants. Instead, it merely indicates that said
applicants showed that their “diabetes was under control.” We note in
this regard that complainant’s physician also stated that his diabetes
was “reasonably well controlled.”
Similarly, several additional questions regarding the Screener applicants
remain unanswerable based upon the record before us. These include the
reason that 179 screener applicants’ applications are still pending a
determination, and how many opportunities were given for the submission of
medical documentation to the Screener applicants pending a determination
and those who resolved their issues. Furthermore, nothing in the record
explains how the agency would have resolved a situation where a permanent
Screener later develops diabetes. Testimony on the agency’s method of
medical review in the aforesaid situation would further assist in the
resolution of this matter.
With respect to the settlement negotiations between complainant’s
and the agency’s counsel, the record is unclear as to what the two
representatives sought to communicate in their declarations. For example,
the agency’s counsel stated that complainant’s counsel asked whether
“TSA hired screeners with Type II diabetes.” She averred that she
“explained that TSA does employ screeners with diabetes, that it is not
‘per se’ disqualifying, and that [c]omplainant would need to pass the
same job-related medical assessment as all other [S]creener applicants.”
We find her assertion that diabetes is not “per se” disqualifying of great
interest in light of her later statement that she made no representation
that complainant “would or would not pass the medical assessment,” and
“was unaware of TSA’s medical standards related to diabetes during the
settlement negations.” The Commission would like to better understand,
among other things, how the agency’s counsel was unaware of TSA’s medical
standards related to diabetes, yet informed complainant’s attorney that
diabetes is not “per se” disqualifying.7 While the agency’s counsel may
have relied on anecdotal evidence, the record requires further elaboration
as to the settlement negotiations which took place.
For the foregoing reasons, the Commission concludes that this matter
requires that a hearing be conducted by an EEOC Administrative Judge.
29 C.F.R. § 1614.504(c). As previously stated, a hearing must be held
to determine: (1) how the Medical Guidelines’ standard was applied
to disqualify complainant from the Screener position; (2) how that
standard was applied with respect to other applicant Screeners; (3)
how the agency resolves situations where a permanent Screener develops
diabetes; and (4) during settlement negotiations, what questions were
asked by complainant’s counsel regarding diabetes and what responses
were given by agency counsel. Ultimately, the EEOC Administrative
Judge must issue a decision as to whether the agency applied the Medical
Guidelines’ standard in a disparate manner to complainant, whether the
agency would have resolved the situation with complainant differently had
he been employed when he developed the diabetes, and/or whether the agency
counsel accurately stated and disclosed the Medical Guidelines’ standard
for individuals with diabetes to complainant’s counsel. Accordingly,
we remand this matter to the agency for compliance with the Order below.
2 The record remains unclear as to whether the AJ’s findings were
memorialized in writing at this point in the process.
3 A person with a fasting blood sugar glucose level of 126
mg/dl or higher has diabetes. American Diabetes Association,
http://www.diabetes.org/about-diabetes.jsp (visited October 23, 2007).
4 We note that, inasmuch as complainant was illegally terminated from
agency employment, his debt may have been a result of the discrimination.
If complainant should have been reinstated, a determination as to the
reason for his bad debt would be required.
5 We note that whether complainant met the latter standard remains
unclear since the agency has not established how many opportunities
similarly situated Screener applicants were given to meet said standard
as compared to complaiannt.
6 Of said applicants, 746 resolved their issues by submitting medical
documentation indicating that their diabetes was under control; 63 were
ineligible for employment as Screeners because the agency found their
diabetes not to meet agency standards; 61 failed another part of the
medical assessment and were ineligible for hire; 179 are still pending
and awaiting determination; 23 voluntarily withdrew their applications;
131 were stopped in the medical process due to failure or removal based
on other aspects of the process; and 934 did not provide responsive
documentation within the time-frame established.
7 We note that complainant’s counsel provided an equally ambiguous
affidavit. Notwithstanding his poorly constructed affidavit, the
Commission finds that clarification from agency’s counsel will allow
for a proper analysis on the claim of breach.
ref:
Ricky Brooks,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120061417
Agency No. TSAF-03-00375
