type I diabetes requires close monitoring
Complainant appealed the FAD1 to the Commission. In Carr v. United
States Postal Serv., EEOC Appeal No. 01A43665 (May 18, 2006), the
Commission found that the record had not been sufficiently developed
by the agency. In our previous decision, we found that the record
undisputedly showed 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.
Based on the medical assessments of complainant’s diabetic condition,
as well as his own statements, the previous decision determined that the
record reflects that complainant’s diabetes requires close monitoring,
to include blood sugar testing every hour while at work. However, the
previous decision found that the record was unclear as to what extent
his condition impacts the major life activities of caring for oneself
and eating.
The previous decision noted that the record was devoid of any
information regarding the frequency and duration of complainant’s
episodes of hyperglycemia and hypoglycemia. In addition, the previous
decision stated that the record contained no evidence either of the type
of symptoms complainant experienced, their frequency or severity, or
whether he required medical treatment during these episodes. Moreover,
outside of showing that he needed to consume a carbohydrate snack in the
event of a hypoglycemic episode, complainant offered no evidence either
that he must adhere to a restricted diet or a strict eating schedule or
that there were medical consequences if he did not do so.
Finally, the previous decision found that the record included no
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. Additionally,
the previous decision noted that the record lacked information describing
complainant’s limitations as they exist after the use of mitigating
measures to combat his diabetes. Therefore, the previous decision
concluded that the record was inadequately developed to determine the
effect of complainant’s diabetes on his major life activities.
The previous decision then reminded the agency that it has a duty to
develop an impartial and appropriate factual record upon which to make
findings on the claims raised by the written complaint. Therefore,
based on the review of the record, the Commission concluded that the
agency failed to develop an adequate evidentiary record upon which to
determine whether complainant is substantially limited in a major life
activity because of his diabetes. Accordingly, the previous decision
vacated FAD1 and remanded the complaint back to the agency to undertake
a supplemental investigation.2
The record indicates that the agency attempted to conduct a supplemental
investigation as directed by the Commission in EEOC Appeal No. 01A43665.
On June 19, 2006, the EEO Investigator mailed complainant a request for
a supplemental affidavit. The request included a series of questions
regarding such issues as complainant’s limitations as to eating and caring
for himself, hypoglycemic and hyperglycemic episodes, complications,
and mitigating measures. The record included a copy of the Delivery
Confirmation indicating that both complainant and his attorney received
these requests on June 21, 2006. Neither complainant nor his attorney
responded to these requests for supplementation information despite the
Commission’s previous decision.
The agency submitted a copy of the supplemental investigative report
to complainant on August 1, 2006. As ordered by the Commission in
the previous decision, the agency issued another final decision (FAD2)
on August 22, 2006. In FAD2, the agency determined that complainant
failed to establish coverage under the Rehabilitation Act. FAD2 also
found that complainant failed to establish a prima facie case of unlawful
retaliation in that complainant did not establish a nexus between his
prior EEO activity and the matter at hand. In addition, FAD2 determined
that the agency articulated legitimate, nondiscriminatory reasons for
its action for which complainant did not show pretext.
Complainant, through counsel, filed the instant appeal without comment.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that
the de novo standard of review “requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
In the previous decision, as stated above, the Commission stated
that the record indicated that complainant has type I diabetes
(diabetes mellitus). However, the previous decision determined
that there was insufficient evidence within the record to find that,
due to the impairment, complainant was substantially limited in the
major life activities of caring for oneself and eating. The matter was
remanded for supplemental investigation in order to allow the agency the
opportunity 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.
The agency requested a supplemental affidavit from complainant asking
for information regarding issues related to: limitations to eating and
caring for himself; his hypoglycemic and hyperglycemic episodes; any
complications; and mitigating measures. Despite the request by the agency
and the guidance provided in the Commission’s previous decision, neither
complainant nor his counsel provided further information. In addition,
neither complainant nor his counsel provided argument or information for
the Commission’s consideration on appeal. Based on the lack of additional
information and our previous decision, we cannot find that complainant is
an individual with a disability for purposes of the Rehabilitation Act.
Therefore, we affirm FAD2’s determination that complainant has not shown
that the agency violated the Rehabilitation Act as alleged.
