The Commission has found that some individuals with diabetes mellitus
(type I diabetes) 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 Carr v. United States Postal Service,
EEOC Appeal No. 01A43665 (May 18, 2006) (citing 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 id. (citing 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. See Carr, EEOC Appeal No. 01A43665. We must
also consider whether the mitigating measure itself substantially limits
a major life activity. Id.
Although the record contains some information indicating complainant
has developed long-term complications associated with his diabetes,
the record is devoid of information as to whether these complications
themselves affect a major life activity. Therefore, we find that the
record is inadequately developed to determine the effect of complainant’s
diabetes on his major life activities. See id. 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. See id.
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.
See id. An appropriate factual record is one that allows a reasonable
fact finder to draw conclusions as to whether discrimination occurred.
See 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. See Carr, EEOC Appeal No. 01A43665.
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 decision, and we REMAND the complaint back
to the agency to undertake a supplemental investigation as set forth in
the ORDER below.
ORDER
1. Within 45 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 July 16, 2004, and
September 18, 2004, the dates of the discriminatory incidents 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 resulting 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.
3. The agency shall instruct the investigator to compile the above
information into an investigative report, and transmit it to the agency
within 45 days of the date that this decision becomes final. No later than
50 days of the date that this decision becomes final, the agency will
insure that complainant is in receipt of a copy of the report, and also
provide a copy to the Compliance Officer referenced below. Thereafter,
within 60 days of the date this decision becomes final, the agency shall
issue a new final decision providing complainant with the appropriate
appeal rights. A copy of the new final decision must be provided to the
Compliance Officer as referenced below.
