Gilbert Spencer v. Department of Homeland Security (Border and Transportation Security) 05A30898 08-29-05 . Gilbert Spencer, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security (Border and Transportation Security), Agency. Request No. 05A30898 Appeal No. 07A10035 Agency No. 98-2150 Hearing No. 360-98-8702x DECISION ON REQUEST FOR RECONSIDERATION On June 10, 2003, the Department of the Treasury (agency)<1> timely initiated a request to the Equal Employment Opportunity Commission (the Commission or EEOC) to reconsider the decision in Gilbert Spencer v. Department of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.405(b). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following two criteria: the appellate decision involved a clearly erroneous interpretation of material fact or law; or the decision will have a substantial impact on the policies, practices or operations of the agency. Id. For the reasons set forth herein, the agency's request is denied. BACKGROUND In the previous decision, the Commission found that the agency discriminated against complainant based on disability (monocular vision) when it did not hire him for the position of Customs Inspector on October 9, 1997. Following an investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ conducted a hearing in August 2000, and, on September 29, 2000, issued a decision finding discrimination and ordering relief. The agency declined to implement the AJ's decision and filed an appeal with the Commission. The previous decision found discrimination and ordered appropriate relief. The complete background of this matter is set forth in the previous decision, but the salient facts are as follows. Complainant lost his left eye in a hunting accident in 1979, but, over the years, he developed compensating strategies, including stronger hearing skills and sight cues, such as using shadows and lighting to judge depth perception and turning his head to offset a lack of peripheral vision on his left side; vision in his right eye was above normal at 20/15. Since 1994, complainant worked as a deputy sheriff in the West Texas area and performed a full range of law enforcement duties and worked with federal agents on drug enforcement activities, carrying out his duties during both day and night hours. In addition, he was skilled in archery, firearms, and karate. In 1996, complainant sought a position with the agency as a Customs Inspector, but, although he had testimonials from federal law enforcement agencies and individuals, he was rejected for not meeting the agency's medical (vision) standards, including a full vision field (peripheral vision) and stereopsis (depth perception).<2> The previous decision found that complainant established that he was an individual with a disability, in that, he was substantially limited in the major life activity of seeing and his compensating strategies did not mitigate his sight in his left eye. The decision also found that he was a qualified individual with a disability, since he was able to perform the essential duties of the position, having successfully performed similar duties in the past. Next, the previous decision examined whether the agency, having refused to hire complainant because of his disability, demonstrated that complainant presented a direct threat to safety that could not be eliminated or reduced through reasonable accommodation. Noting that such a showing requires a case-by-case individualized assessment of the complainant's present ability to perform the job functions, the previous decision concluded that the agency failed to measure complainant's abilities against the job functions in question or assess whether a reasonable accommodation(s) would reduce the claimed risk to safety. Upon finding discrimination, the previous decision awarded compensatory damages of $5,000; attorney's fees to counsel of record; retroactive assignment to the position in El Paso; back pay; and other remedies listed in the Order, below. As discussed in more detail below, in its request, the agency argued that the previous decision contained errors of fact and law. Specifically, the agency argued that complainant was not an individual with a disability; that the agency refused to hire him because he failed to meet the agency's medical standards for the position; that the legal analysis of this matter required application of the McDonnell Douglas scheme, and a direct threat analysis was not necessary; and that the agency's individualized assessment was sufficient. In response, complainant argued that the previous decision is supported by evidence in the record and that the agency failed to carry its burden under 29 C.F.R. § 1614.405(b)(1) to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law. Specifically, complainant argued that he was a person with a disability, in that, he was substantially limited in the major life activity of seeing, and, in addition, that the agency regarded him as an individual with a disability. Further, complainant contended that he was qualified for the position and that the record showed that he was not hired because of his disability; thus, the decision applied the correct legal analysis to his case and that the agency did not prove that he posed a direct threat and could not justify its refusal to hire him. ANALYSIS AND FINDINGS In order to merit the reconsideration of a prior decision, the requesting party must submit written argument that tends to establish that at least one of the criteria of 29 C.F.R. § 1614.405(b) is met. The Commission's scope of review on a request for reconsideration is narrow and is not merely a form of a second appeal. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). In its request, the agency contends that the previous decision involved clearly erroneous interpretations of material fact and law. As set out below, the Commission finds that the agency's request does not meet the regulatory criteria of 29 C.F.R. § 1614.405(b)(1), in that, the request does not identify a clearly erroneous interpretation of material fact or law. The threshold question before us is whether complainant is an individual with a disability under the Commission's regulations. Initially, he must show that he has a physical or mental impairment that substantially limits one or more major life activities. 29 C.F.R. § 1630.2(g)(1). Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). 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. While an individual missing an eye has a physiological condition that 'ordinarily' will meet the definition of a disability, consideration of whether complainant's impairment substantially limits or significantly restricts his ability to see must necessarily include any mitigating measures used by complainant to reduce the impact of his impairment, whether an artificial aid or one or more of the body's own systems. See Albertson's, Inc. v. Kirkingburg, 527 U.S. at 567 (individuals with monocular vision must "prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial"); also see Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999); 29 CFR Part 1630, App.§ 1630.2(j) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has but rather on the effect of that impairment on the life of the individual"). As stated in the previous decision, we find that complainant has shown that the effect of his impairment on his life renders him a person with a disability. The evidence shows that complainant had good visual acuity, i.e., complainant's vision in his right eye was 20/15, but, because he had no vision in his left eye, he had less peripheral vision (loss of visual field) and stereopsis (depth of perception). While he testified that he used his sense of hearing to ameliorate the absence of vision in his left eye, particularly to make up for the loss of his peripheral vision, hearing as a mitigating measure does not compensate for the loss of visual ability, in that, it does not allow him to see peripherally. Also, complainant's use of visual clues does not fully compensate his loss of depth perception. Thus, our previous decision correctly concluded that complainant's diminished peripheral vision and depth perception are not mitigated and that complainant's monocularity substantially limits the major life activity of seeing; thus, complainant is an individual with a disability. Initially, the agency argued that complainant's impairment did not substantially limit any major life activity, because his mitigation techniques were sufficient to allow him to perform all daily life tasks, and, therefore, complainant was not an individual with a disability. In making this argument, the agency relied on the Supreme Court's decision in Toyota Motors Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), contending that proof of a substantial limitation in a major life activity must consider the effect on the individual's daily life tasks and show how s/he is substantially limited in daily life tasks. In the instant matter, the agency contended that complainant had sufficient compensating techniques to make up for his loss of sight in one eye to allow him to perform daily life tasks and thus was not substantially limited in a major life activity. The agency argued that the previous decision ignored the impact of complainant's mitigating techniques on his performance of daily life tasks, and it erroneously concluded that complainant was an individual with a disability. The agency, however, misreads the Supreme Court's decision in Toyota. As reflected in the opinion in Toyota, which involved the impairments of carpal tunnel syndrome and tendinitis, the Supreme Court was concerned only with what substantially limited meant in terms of the performance of manual tasks, which was the major life activity affected by the plaintiff's impairments in that case. Id. at 197-98. The Supreme Court's analysis regarding the impact of the disability relevant in that case on the ability to perform basic tasks does not apply to what is required to show a substantial limitation in such major life activities as seeing or breathing. See Albert v. Smith's Food & Drug Centers, Inc., 356 F.3d 1242 (10th Cir. 2004). Further, the agency contended that, in finding that complainant was an individual with a disability, the Commission ignored complainant's mitigation techniques. In fact, the previous decision recognized that complainant had developed methods to reduce the impact of his impairment through sight cues and use of hearing. However, while complainant uses shadows and highlights to help him judge depth, he does not dispute the agency's evidence that an individual with diminished stereopsis would have difficulty seeing aberrations in low light; complainant's use of hearing as a compensation technique does not improve his ability to see peripherally. The agency also argued that the Commission's distinction between those measures or devices that compensate for the loss of an individual's ability to perform a major life activity and those that enable an individual to perform a major life activity is not consistent with Supreme Court precedent. In fact, the Supreme Court, itself, noted the distinction when it discussed mitigating measures, pointing out that an individual who uses a wheelchair, while mobile, may still be disabled because of a substantial limitation in the ability to walk. Sutton v. United Airlines, 527 U.S. 471, 488 (1999). This distinction is equally applicable when the measure undertaken to compensate for the inability or diminished ability to perform a major life activity involves the body's own systems rather than an assistive device. See Albertson's, Inc. v. Kirkingburg, supra, at 565-566 ("we see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems."); see also 29 C.F.R. § 1630.2(j)(i). In its decision, the Commission applied this same distinction to complainant's use of hearing to compensate, at least to some extent, for his monocular vision. Complainant's use of his hearing is like the use of a wheelchair to compensate for the inability to walk. It did not improve his peripheral vision; it compensated for the fact that he lacked peripheral vision. The determination of whether an individual has an impairment that substantially limits a major life activity is made on a case-by-case basis. See 29 C.F.R. § 1630.2(j); Interpretive Guidance, Section 1630.2(j); Sutton v. United Airlines, 527 U.S. 471, 483 (1999); see, generally, Section 902: Definition of the Term "Disability," EEOC Compliance Manual (March 1995) (Section 902). An impairment rises to the level of disability if the impairment substantially limits an individual's major life activity(ies). A person is not an individual with a disability merely because s/he has been diagnosed with a certain condition: instead, the determination rests on the effect of that impairment on the major life activities of the individual. The symptoms of an impairment and its impact likely vary from person to person, and an employee must present evidence to show the substantial limitations of his/her impairment. See Sutton v. United Airlines, supra; Albertson's, Inc., v. Kirkingburg, supra, at 565-566; Murphy v. United Parcel Service, 527 U.S. 516, 521-523 (1999); Petty v. USPS, EEOC Appeal No. 01A05440 (March 27, 2003). We reject the agency's contention that our finding that complainant was an individual with a disability would establish monocular vision as a per se disability; such a conclusion would drop the individualized assessment at the heart of the law.<3> In Albertson's, the Court expressed doubt that monocularity would fall into a class of impairment that invariably causes a substantial limitation of a major life activity, in that, the degree of visual acuity in the weaker eye, the age at which they suffered their vision loss, the extent of their compensating adjustments in visual techniques, and the ultimate scope of the restrictions on their visual abilities are variables that "are not the stuff of a per se rule." Albertson's, supra, at 566. The agency argued that the Commission erred when it failed to apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), analysis, because the agency did not concede that complainant was an individual with a disability nor that complainant was not hired because of a disability. However, it is not disputed that the agency rejected complainant because of his monocular vision. Having found that complainant was, in fact, an individual with a disability, the previous decision properly examined, and, based on the evidence presented, correctly concluded that he was a qualified individual with a disability. Thus, the next issue to be addressed is whether the agency's action was justified by a direct threat to safety. Exclusion of an individual on the basis of future possible injury to self or others must be supported by a showing that there is a significant risk, i.e., a high probability of substantial harm; a speculative or remote risk is insufficient. 29 C.F.R. § 1630.15(b)(2); also see Interpretive Guidance. The burden is on the agency to show more than that an individual with a disability seeking employment stands some slightly increased risk of harm, and the agency must demonstrate that a significant risk exists. Selix v. USPS, EEOC Appeal No. 01970153 (March 16, 2000). Moreover, such a finding must be based on an individualized assessment that takes into account (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur; and (d) the imminence of the potential harm. 29 C.F.R. § 1630.2(r); Interpretive Guidance. A determination of significant risk must be based on more than an employer's subjective evaluation, or, except in the rare case of an apparent nature, general medical conclusions, reports, and suppositions. Rather, this determination requires that the employer collect and evaluate substantial information regarding the individual's work and medical histories. See Chevron U.S., Inc. v. Echazabal, 536 U.S. 122 (2002); Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985); Harrison v. Department of Justice (DEA), supra. The purpose of the individualized assessment requirement is to ensure that individuals with disabilities are not excluded from job opportunities, unless they are actually unable to do the job. Here, the agency found complainant unacceptable for employment, not based on an individualized assessment measuring how complainant would perform elements of the job's duties but on general suppositions of what could happen under hypothetical circumstances that could place complainant's or others' safety in jeopardy. Contrary to the agency's arguments, it met none of the requirements in our regulations when it considered whether complainant was a qualified individual with a disability, and it did not meet its burden to show that complainant's employment would pose a high probability of substantial harm. We hold that the agency failed to perform an individualized assessment of complainant and take into account complainant's medical and work history, in that, it did not look past the generalizations that formed its medical standards to determine whether complainant could perform the job. See Harrison v. Department of Justice (DEA), supra; Selix v. USPS, supra. While the agency asserted that its vision specialist conducted the appropriate individualized assessment of complainant and the risk posed by his limitations, no evidence bears this out. See Agency's Motion for Reconsideration, § E (June 10, 2003). The transcript portion cited by the agency shows only that the agency's vision specialist believed that an individual with complainant's vision limitations would be precluded from observing simultaneous activity in an active environment and limited in his ability to receive information about the texture, bulges, and perspective of an object (that such limitations would make the individual 'inefficient'). Neither the degree of complainant's limitation nor his skills and abilities are addressed or considered against the essential elements of the job. Further, the agency's expert in human performance, job task analysis, and medical standards did not concern himself with complainant's actual skills and abilities as measured against the essential functions of the job.<4> Thus, we conclude that the agency failed to show that complainant would pose a direct threat, because it did not make an individualized assessment of the alleged risk posed by complainant and, instead, applied a blanket medical qualification without examining its specific application to the complainant. See Holmes v. USPS, EEOC Appeal No. 01977073 (October 20, 2000). Testimony and evidence about the general effect of monocular vision on the performance of the essential functions of the job was not sufficient to demonstrate that complainant's employment in the position posed a direct threat to safety. Complainant's skills, abilities, and experience demonstrated that he could perform the job requirements of the Customs Inspector position; the agency did not show that his disability posed a direct threat to the safety of self or others. See Van Parys v. USPS, EEOC Appeal No. 01991100 (August 22, 2001). The agency has the burden of proof regarding whether there is a significant risk of substantial harm, and the agency did not carry its burden.<5> See Massingill v. Department of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000). CONCLUSION After a review of the agency's request for reconsideration, the previous decision, and the entire record, the Commission finds that the agency's request fails to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to deny the agency's request. The decision of the Commission in EEOC Appeal No. 07A10035 is affirmed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. The agency is directed to comply with the Order, below. ORDER (D0403) The agency is ordered to take the following remedial actions: A. Within sixty (60) days of the date this decision becomes final, the agency shall instate complainant into the position of Customs Inspector, retroactive to the date complainant would have started on the job. To the extent that other agency hires who successfully performed their jobs received step increases, complainant is entitled to be awarded step increases in the same manner as they were awarded to other agency hires. If this position had a career ladder, and if other hires who successfully performed their jobs were promoted within the career ladder, complainant is entitled to additional grade promotions within the career ladder. B. Complainant's duty station shall be El Paso, Texas, unless the parties agree to a different duty station. Within sixty (60) days of the date this decision becomes final, complainant shall be awarded back pay, with interest, and benefits, from the date he would have been hired but for the agency's discrimination. The agency shall determine the appropriate amount of back pay and benefits due complainant pursuant to 29 C.F.R. § 1614.501. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due, with a full explanation of its calculations. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." C. Within sixty (60) days of the date this decision becomes final, the agency is directed to pay attorney fees for 91 hours of work as follows: 35.1 hours for Attorney A at $125/hour, totaling $4,387.50; 55.9 hours for Attorney B at $150/hour, totaling $8,385. D. Within sixty (60) days of the date this decision becomes final, the agency will pay compensatory damages in the amount of $5,000. E. Within sixty (60) days of the date this decision becomes final, the agency should consider taking disciplinary action against the individuals responsible for making the agency's decision in this matter. If the agency decides to take disciplinary action, it shall identify in its compliance report the action taken. If the agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for its decision not to impose discipline. F. The agency shall conduct eight (8) hours of training for the agency employees responsible for the discrimination found herein regarding their duties and obligations under the Rehabilitation Act. The Commission does not consider training to be a disciplinary action. G. The agency is directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the agency's calculation of back pay and benefits due complainant, including evidence that the corrective action has been implemented. A copy of all filings shall be sent to the complainant. POSTING ORDER (G0900) The agency is ordered to post at its El Paso, Texas, 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. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. 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: ______________________________ Stephen Llewellyn Acting Executive Officer Executive Secretariat ______08-29-05____________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ Equal Opportunity Assistant 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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq. has occurred at 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 DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The Department of Homeland Security (Customs and Border Protection), El Paso, Texas, supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The Department of Homeland Security (Customs and Border Protection), El Paso, Texas, has been found to have discriminated against an applicant for employment because of his disability and has been ordered to hire the applicant and pay back pay and damages. The Department of Homeland Security (Customs and Border Protection), El Paso, Texas, 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. The Department of Homeland Security (Customs and Border Protection), El Paso, Texas, 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: 29 C.F.R. Part 1614.1Pursuant to the Homeland Security Act of 2002, the U.S. Customs Service of the Department of the Treasury became part of the Department of Homeland Security (Border and Transportation Security). 2Stereopsis is the process of combining two retinal images into one through which two-eyed individuals gain much of their depth perception, particularly at short distances. At greater distances, stereopsis is relatively less important for depth perception. In their distance vision, therefore, monocular individuals are able to compensate for their lack of stereopsis to varying degrees by relying on monocular cues, such as motion parallax, linear perspective, overlay of contours, and distribution of highlights and shadows. Albertson's v. Kirkingburg, 527 U.S. 555 (1999), fn. 12. 3The concept of per se disabilities has not been sanctioned by the Supreme Court. In Bragdon v. Abbott, the Court declined to address the question of whether HIV status is a per se disability, notwithstanding the apparent Congressional intent to consider HIV infection as inherently substantially limiting. 524 U.S. 624, 642 (1998); see also Section 902, 902.4(c), supra. 4The agency's investigation report did not include complete copies of two major documents, i.e., the "Summary of Medical Standards, an Essential Task List Performed by U.S. Customs Service Inspectors," and a position description for the job of customs inspector. 5Citing to Equal Employment Opportunity Commission v. Exxon Corporation, 203 F.3d 871 (5th Cir. 2000), the agency argued that the direct threat analysis is not applicable. The Commission has considered the agency's argument but declines to adopt the analysis used in the aforementioned civil action to this administrative complainant.