Paul L. Surprenant v. United States Postal Service 01996186 July 27, 2001 . Paul L. Surprenant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area Office), Agency. Appeal No. 01996186 Agency Nos. 1B-012-1058-95; 1B-012-1030-96 Hearing Nos. 160-97-8108X; 160-97-8488X DECISION Complainant timely initiated an appeal from the agency's final decision concerning his equal employment opportunity (EEO) complaints of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. § 1614.405. On appeal, complainant alleges he was discriminated against on the basis of disability (diabetes mellitus) when the agency reassigned him from his position as a Tractor Trailer Operator to the positions of Vehicle Operations Assistant and Mail Handler. For the following reasons, the Commission reverses the agency's final decision. BACKGROUND The record reveals that complainant had been working as a Tractor Trailer Operator at the agency's Bulk Mail Center in Springfield, Massachusetts since 1984. His driving duty consisted of driving a tractor trailer in excess of 10,000 pounds on postal property. He first became aware of his diabetes in 1985 and subsequently successfully controlled it through medication (daily insulin injections) and diet. In 1989, he underwent an annual physical examination wherein the agency physician noted that in 1987 complainant had experienced a mild hypoglycemic episode, with no loss of consciousness, which was remedied by a "spoonful of honey." The agency physician rated him as a "low risk." In 1991, the same agency physician rated him as "no risk." He has no record of accidents or unsafe driving with the agency. In 1994, the agency discontinued issuing government licenses to operate motor vehicles and required drivers to obtain a commercial driver's license in order to operate vehicles in excess of 10,000 pounds. Concurrently, the agency decided that all holders of such commercial licenses had to undergo biennial physicals to insure compliance with regulations promulgated by the Department of Transportation (DOT), voluntarily adopted by the agency, effective January 1, 1995.<2> Title 49 C.F.R. § 391.41, which addresses physical qualifications and examinations for individuals operating vehicles over 10,000 pounds in interstate commerce, states that a person is not qualified to operate a motor vehicle over 10,000 pounds if he or she has an established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control. 49 C.F.R. § 391.41(b)(3). The agency decided that this regulation: (1) would also apply to yard drivers operating such vehicles on postal property; and (2) would not exempt insulin dependent drivers who had obtained waivers from the State of Massachusetts to drive "intrastate," because the nature of the cargo carried in postal tractor trailers falls within the definition of "interstate transportation," and the agency wanted a yard driver to be able to assume an over the road assignment if such a need arose.<3> The purpose for the broader coverage was to achieve a uniform standard for yard and road drivers. On December 1, 1994, complainant underwent a physical examination which showed that he required daily insulin injections to control his diabetes. Due to the newly adopted DOT regulations, complainant was no longer permitted to drive the tractor trailers and was reassigned to the position of Vehicle Operations Assistant. On November 22, 1995, the agency reassigned complainant out of the motor vehicle craft and into the mail handler craft as a Mail Handler. However, as a result of a grievance filed by complainant, the agency rescinded this reassignment and returned complainant to the motor vehicle craft as a Vehicle Operations Assistant. Complainant filed two formal EEO complaints alleging that: (1) the initial reassignment to the Vehicle Operations Assistant position was discriminatory based on disability; and (2) the second, albeit aborted, reassignment to the Mail Handler position was discriminatory based on disability and in retaliation for opposing the initial reassignment. At the conclusion of the investigations, complainant requested a hearing before an EEOC Administrative Judge. The Administrative Judge consolidated the complaints and issued a decision without a hearing based on the parties' cross motions for summary judgment. Regarding the claim of retaliation, the Administrative Judge found that complainant was not retaliated against when he was reassigned to the mail handler craft because the management official responsible for the reassignment had no knowledge that complainant had received EEO counseling in reference to being removed from his tractor trailer duties. The final agency decision adopted the Administrative Judge's finding regarding the retaliation claim, and complainant has not raised it on appeal. However, the Administrative Judge concluded that the agency had discriminated against complainant on the basis of disability when they initially reassigned him from the Tractor Trailer Operator position to the position of Vehicle Operations Assistant. In reaching this conclusion, the Administrative Judge found that complainant was an individual with a disability because the Commission has held that an insulin dependent diabetic is an individual with a disability as defined by the Rehabilitation Act. The Administrative Judge further found that since complainant had successfully and safely driven these tractor trailers for nine years after he was first diagnosed with diabetes and that the only incident precipitating his removal was the agency's adoption of the above referenced DOT regulation, complainant was otherwise qualified to perform the essential functions of his position. The Administrative Judge concluded that in order to justify its qualification standard, the agency had to establish that it was job related and consistent with business necessity and therefore, should have conducted an individualized assessment of complainant's condition to determine whether he posed a direct threat which a reasonable accommodation would not eliminate or reduce to an acceptable level. The Administrative Judge further concluded that the agency's reassignment of complainant to a Mail Handler position was direct evidence of discrimination since the management official who reassigned complainant stated that he did so because complainant could no longer drive based on the DOT regulation and since there was no evidence that the reassignment occurred for any other reason. The agency's final decision rejected the Administrative Judge's findings of disability discrimination. The agency relies on two arguments. First, the agency argues that based on the Supreme Court's decision in Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999), an agency does not have to perform an individualized assessment when a federal agency requires a job qualification that an employee must meet applicable safety regulations.<4> Second, the agency argues that based on the Supreme Court's decision in Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), the fact that complainant is unable to meet the DOT regulation is not sufficient to "create a genuine issue of material fact as to whether he is regarded as unable to perform a class of jobs utilizing his skills." On appeal, complainant's counsel asks the Commission to ignore the Supreme Court's decision in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), requiring that the positive and negative effects of mitigating measures be considered when determining whether an individual has an impairment which substantially limits a major life activity.<5> FINDINGS AND ANALYSIS As a threshold matter, complainant must establish that he is a “qualified individual with disability” within the meaning of the Rehabilitation Act. An "individual with a disability" is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Sitting, standing, lifting, and reaching are also recognized as major life activities. Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.2(i). A "qualified" individual with a disability is one who satisfies the requirements for the employment position he holds or desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). The determination as to whether an individual has an impairment which substantially limits a major life activity is made on a case by case basis. Bragdon v. Abbott, 524 U.S. 624 (1998); Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.2(j). Diabetes mellitus is a disorder in which blood levels of glucose (a simple sugar) are abnormally high because the body does not release or use insulin adequately. Individuals with diabetes mellitus produce little to no insulin at all and thus must regularly inject it in order to control blood sugar levels. The primary problem controlling blood sugar levels is the increased chance of overshooting, resulting in hypoglycemia which can cause organs, specifically the brain, to malfunction or fail. Commission precedent has found that some individuals with diabetes mellitus are individual 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 pending, EEOC Request No. 05A10357. 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 Drummond v. Department of the Army, EEOC Petition No. 03990069 (March 6, 2000); Medina v. United States Postal Service, EEOC Appeal No. 01990709 (February 15, 2000). In the instant case, the record indicates that through the daily injection of insulin and monitoring of diet, complainant has been successful controlling his diabetes and has not suffered from any complications. His treating physician describes his blood sugar control as "excellent." There is no evidence in the record as to whether controlling his condition requires complainant to strictly monitor his blood sugar levels throughout the day or whether he has to pay strict attention to what, when, and how much he eats. On appeal, complainant does not contend that the effort required to maintain this control imposes substantial limitations on any one of his major life activities. Rather, he argues that the diabetes itself substantially limits him only in the major life activity of working, and in the alternative, that he was regarded as being substantially limited only in the major life activity of working. In his appeal statement, complainant argues that he is substantially limited in the major life activity of working because he cannot perform either a class of jobs due to his inability to operate vehicles weighing more than 10,000 pounds in interstate commerce or a broad range of jobs in various classes due to his need to only work the day shift. The major life activity of working should only be considered if an individual is not substantially limited with respect to any other major life activity. Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.2(j). Since complainant does not contend and the evidence of record does not indicate that he is substantially limited in other major life activities, we will consider the major life activity of working. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i). To be substantially limited in the major life activity of working, one must be precluded from more than one type of job, a specialized job or a particular job of choice. Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). The Commission finds that truck driving is a class of jobs, and because the DOT regulations preclude complainant from driving motor vehicles in excess of 10,000 pounds, he is significantly restricted in his ability to drive a truck as compared to the average person having comparable training, skills and abilities. Accordingly, the Commission concludes that complainant is an individual with an impairment which substantially limits the major life activity of working. 29 C.F.R. § 1630.2(g)(1). Thus, we find the agency's reliance on Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999) to be misplaced. The Commission notes that there is no dispute between the parties that complainant had been successfully and safely driving tractor trailers for the past nine years and that there was no explanation besides the DOT safety standard for removing complainant from his position. Complainant argues that if, as a reasonable accommodation, the agency waived the safety requirement, he would be a qualified individual with a disability. In response, the agency contends that insulin dependent diabetics are not qualified to drive tractor trailers because they pose a direct threat, rooted in the unpredictability of the occurrence of a hypoglycemic episode. The agency further argues that formally restricting complainant only to yard work as opposed to over the road assignments would not diminish the threat he posed because of the constant high volume of motor vehicle and pedestrian traffic at the Springfield facility. An employer may require, as a qualification standard, that an individual not pose a direct threat. A "direct threat" is defined as "a significant risk of substantial harm" which cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. § 1630.2(r). The agency has the burden of proof regarding whether there is a significant risk of substantial harm. See Massingill v. Department of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000). A determination as to whether an individual poses such a risk cannot be based on an employer's subjective evaluation or, except in cases of the most apparent nature, merely on medical reports. See Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). Rather, after identifying the risk, the employer must conduct an individualized assessment of the individual that takes into account: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r). This assessment must be based on objective evidence, not subjective perceptions, irrational fears, patronizing attitudes or stereotypes about the nature or effect of a particular disability or of disability generally. Relevant evidence may include input from the individual with a disability, his work history or experiences in previous positions, and opinions of medical doctors who have expertise in the particular disability or direct knowledge of the individual with the disability. If it is determined that an individual does pose a direct threat because of his disability, the employer must determine whether a reasonable accommodation would eliminate the risk of harm or reduce it to an acceptable level. The Commission finds that the agency failed to conduct an individualized assessment of complainant. We find that the agency's reliance on the Supreme Court's decision in Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999) is misplaced since the employer in Albertsons, Inc. was required to abide by DOT regulations whereas in the instant case, the agency's adoption of the DOT regulations was purely voluntary. Accordingly, the agency should have conducted an individualized assessment of complainant rather than relying on the following statement made by one of its physicians: Diabetics treated with insulin are prone to episodes of hypoglycemia which may be severe. Although some diabetics are more likely to have these episodes than others, to my knowledge, almost any diabetic may be subject to them. This is true even if the individual has never had such an episode. Variables such as changes in insulin dosage or type, injection site, food intake, physical activity, environmental temperature, body weight, and underlying state of health can change the response of the body to insulin and may result in an unpredictable hypoglycemic episode. . . Whereas the operation of a motor vehicle requires constant mental vigilance, the occurrence of a severe hypoglycemic episode while engaging in such operation may lead to a serious fatal outcome. We note that there is no evidence that this agency physician had any expertise in the study of diabetes or any direct knowledge of complainant. Rather, the agency submitted evidence that as of 1991 complainant had experienced two hypoglycemic episodes in the previous six years: one of them, as described above, was considered mild and remedied by a spoonful of honey; there is no evidence concerning the severity of the other; and there is no evidence indicating that the agency was alarmed by or concerned with their occurrences. Moreover, there is no evidence that complainant experienced a hypoglycemic episode after 1991. Rather than seeking an opinion from complainant's own treating physician or even from the agency physician who examined complainant in December 1994, the agency concluded that an individualized assessment of complainant was unnecessary, since such an assessment would not conclusively determine whether complainant would have another episode. We note the error in the agency's reasoning insofar as the purpose of an individualized assessment is not to produce a conclusive result as to whether harm will occur but rather to determine whether there is a significant risk of substantial harm which cannot be eliminated or reduced by reasonable accommodation. Accordingly, the Commission concludes that, as a result of its failure to conduct an individualized assessment of complainant, the agency did not meet its burden of proof with regard to whether complainant posed a significant risk of substantial harm. Consequently, we find that the agency discriminated against complainant on the basis of his disability when it reassigned him from his position as a Tractor Trailer Operator to the position of Vehicle Operations Assistant. We also find that because this is not a case where the agency made a "good faith effort" to reasonably accommodate complainant, the agency is not relieved of its obligation to award appropriate compensatory damages.<6> See Teshima v. United States Postal Service, EEOC Appeal No. 01961997 (May 5, 1998). Therefore, we remand the case to the New York District Office for a determination regarding complainant's entitlement to remedies. In light of this finding, we decline to address the Administrative Judge's conclusion that complainant proved direct evidence of disability discrimination when the agency reassigned him to a Mail Handler position. In conclusion, we discern no basis to disturb the Administrative Judge's finding of discrimination, and we reverse the agency's final decision and remand the case in accordance with the Order below. ORDER The issue of remedies is remanded to the Hearings Unit of the New York District Office. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge must be assigned in an expeditious manner to further process the issue of remedies in accordance with the regulations. In order to determine the scope of relief to which complainant is entitled, on remand, the Administrative Judge shall take such evidence as is necessary to determine whether complainant poses a direct threat which cannot be eliminated or reduced to an acceptable level by a reasonable accommodation. Complainant shall cooperate with the Administrative Judge's efforts to make this determination by providing relevant evidence upon request. The Administrative Judge shall then determine complainant's entitlement to appropriate equitable relief, compensatory damages, and attorney's fees. Thereafter, the Administrative Judge shall issue a decision on these issues in accordance with 29 C.F.R. § 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110 within forty (40) days of receipt of the Administrative Judge's decision. POSTING ORDER (G0900) The agency is ordered to post at its Springfield, Massachusetts facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0900) The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests to reconsider, with supporting statement or brief, must be filed with the office of federal operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Frances M. Hart Executive Officer Executive Secretariat July 27, 2001 __________________ Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an order by the United States Equal Employment Opportunity Commission dated ___________ which found that a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. has occurred at the agency's Bulk Mail Center in Springfield, Massachusetts (hereinafter this facility). Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. This facility was found to have discriminated against an employee on the basis of disability . The facility was ordered to take remedial action consistent with its obligations under the Rehabilitation Act and the Commission's regulations and to pay proven compensatory damages and attorney's fees. This facility will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all federal equal employment opportunity laws and will not retaliate against employees who file EEO complaints. This facility will comply with federal law and will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, federal equal employment opportunity law. Date Posted: _____________________ Posting Expires: _________________ 1 The Rehabilitation Act was amended in 1992 to apply the standards in the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. 2 The agency was not required to comply with these regulations because under 49 C.F.R. § 390.3(f)(2), the Federal Motor Carrier Safety regulations do not apply to transportation performed by the Federal Government, and the United States Postal Service, a quasi private corporation, is a federal agency under the Executive Branch of the Federal Government. However, "for reasons of safety," the agency elected to comply with these regulations. Relief from the regulations adopted by the agency is solely within the agency's authority. 3 The Commission notes that after the State of Massachusetts conducted an individualized assessment of complainant, he obtained a waiver to drive vehicles in excess of 10,000 pounds intrastate in 1995 and again in 1997. 4 The DOT had a Diabetic Waiver Program in effect from July 1993 through April 1994. 5 The Administrative Judge's decision was issued on June 2, 1999. The Supreme Court's decisions in Sutton, Murphy, and Albertsons, Inc. were issued on June 22, 1999, and the agency's final decision was issued on July 7, 1999. 6 Contrary to the Administrative Judge's finding that compensatory damages were not requested, the Commission finds that complainant asserted a claim for compensatory damages during the investigative stage of this case and that he raised it again on appeal.