James E. Lewis v. Department of Defense (Defense Logistics Agency) 01A24984 08-10-04 . James E. Lewis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency. Appeal No. 01A24984 Agency No. JQ-01-104 Hearing No. 310-A2-5248X DECISION Complainant timely initiated an appeal from the agency's final order concerning his equal employment opportunity (EEO) complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Commission reveres the agency's final order. ISSUE PRESENTED The issue presented herein is whether complainant proved, by a preponderance of the evidence, that he was discriminated against based on his disability (Insulin Dependent Diabetes Mellitus) when he was denied a Temporary Duty (TDY) assignment to Germany. BACKGROUND Complainant worked as a Materials Examiner and Identifier, WG-05, at the agency's Defense Distribution Center Red River, Receiving Branch, Texarkana, Texas facility. The record reveals that complainant was diagnosed with insulin dependent diabetes mellitus in 1995 and is required to inject himself with insulin and adhere to a very strict diet. He has no job restrictions or limitations due to his impairment. In 2001, Complainant volunteered to go to Germany for a sixty day TDY assignment. On May 9, 2001, the agency physician conducted an overseas physical examination on complainant. The agency physician found that complainant's diabetes was “not in good control based on [complainant's] morning blood sugar self monitoring of 244 mg/dl.”<1> Complainant was asked to follow up with his own physician for further evaluation and medical clearance. Complainant's supervisor spoke with complainant's physician and advised him that complainant needed a “statement to the effect that complainant could travel abroad notwithstanding the diabetes.” In a note, dated June 4, 2001, complainant's physician indicated that complainant's blood sugar “is under control, HbA1c (3 mos Blood Sugar monitoring) is decreasing (from 10.7 to 9.7). [Patient] continues to progress, and is to continue on a diabetic diet and take his med[ications].” After receiving the physician's note, on June 5, 2001, the agency's physician ordered a blood sugar test for complainant. The agency physician asserted that he ordered the test because HbA1c of less than 6 is considered to be within normal limits, and complainant had a level of 9.7. He also found significant that, only one month before, complainant's insulin dose had been increased from once a day to twice a day, and complainant had only been taking insulin for the previous 6 months. The agency physician then indicated that he would contact the Army Surgeon General in Germany to discuss complainant's case and obtain permission/clearance for complainant to deploy to TDY. The agency physician spoke with the Chief of the Internal Medicine (CIM) Department at Heidelberg Army Medical Center about complainant's medical condition. The CIM informed the agency physician that the hospital was one hour away by car from the TDY station and stated that any emergency situation would require treatment at the hospital at the complainant's own expense. The CIM concurred with the agency physician that complainant should not be recommended for TDY. The agency physician indicated that he “considered complainant medically disqualified for overseas TDY travel because of a known serious medical condition of Insulin Dependent Diabetes Mellitus that was not in good control and not stabilized, with potential risk of serious medical problems such as insulin shock and hyperglycemia.”<2> He noted that, during TDY travel overseas, risk increases for stress and disruptions of normal routine and normal dietary regimen, factors which may affect and aggravate diabetes and insulin dosage. The agency physician further opined that these aggravations could require medical treatment and frequent trips to the Heidelberg Army Medical Center, resulting in excessive time lost from duty. Furthermore, he expressed concerns that complainant might even need to return to the continental United States (CONUS), requiring his replacement in Germany. According to the agency physician, “All of these potential problems could affect and compromise the agency's mission. . . .” Complainant filed a formal EEO complaint on August 27, 2001. The agency accepted the complaint for investigation on September 25, 2001. At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On June 11, 2002, the AJ issued a decision without a hearing, finding no discrimination. The AJ assumed for purposes of his decision that complainant established that he was an individual with a disability. With respect to whether complainant was a qualified individual with a disability, the AJ found that, because complainant might endanger the health or safety of himself or others, a direct threat standard could be imposed. The AJ determined that the agency relied on medical advice that reflected that complainant's blood sugar levels were not stabilized, that they were from 70 to 130 points above the normal non-bedtime testing range, and that his HbA1c level was approximately 50% above the normal range. The AJ also noted that complainant's daily insulin dose had been doubled within a month before and the current readings were still higher than the normal range, although they were moving toward the normal range. Based upon the risk to complainant and the medical conclusions reached by the agency's physician that if something happened to complainant he would either have to be returned to Texas or would miss significant time away from his TDY, the AJ found that the agency had met its burden of making an informed decision based on complainant's particular situation. The AJ determined that the agency's physician appropriately made a decision based upon complainant's unstabilized and uncontrolled diabetes by objective measurements and weighed the substantial and potentially severe harm to complainant if he were sent to perform the duties of the position in Germany, in light of the agency's limitations on providing appropriate medical support. The AJ concluded that the complainant was not discriminated against in violation of the Rehabilitation Act. On August 1, 2002, the agency's final order implemented the AJ's decision. On appeal, complainant contends that the AJ erred by failing to correctly analyze when an employee poses a direct threat. He maintains that it is the agency's burden to prove that he posed a direct threat. He asserts that the agency physician rushed to judgment and based his decision to disqualify complainant from overseas travel on a “one-time reading” of his blood sugar level, which was improper in light of the dynamic nature and constant fluctuation of blood sugar levels. He explains that his personal physician concluded that his blood sugar level was under control based on multiple readings of numerical figures over a three month monitoring period. Complainant further explains that his medical records show that his physician cleared him for overseas travel for a duration of 60 days and provided him with a 90 day supply of medications. Finally, he asserts that he has never been under any physical restrictions regarding his official duties. In response, the agency contends that the AJ correctly found that complainant posed a significant risk to himself. It further asserts that the only reference in the record to the June 4, 2001 letter prepared by complainant's physician appears in the agency physician's statement in the report of investigation. It maintains that complainant is attempting to hide the fact that his physician did not clear him for travel, and that complainant's condition was volatile. Furthermore, it argues that the Commission should not consider the documents complainant submitted on appeal, as the Commission does not accept new evidence, and the documents were available prior to the FAD and the AJ's decision. Finally, the agency reiterates the facts leading to its determination not to approve complainant's TDY. ANALYSIS AND FINDINGS In order to claim the protections of the Rehabilitation Act, complainant must first establish that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination. 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 record of such impairment; or (3) is regarded as having such an impairment. See 29 C.F.R. § 1630.2(g)(1)-(3). Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). The term "substantially limits" means: unable to perform a major life activity that the average person in the general population can perform; or significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). Determinations regarding whether a complainant is an individual with a disability must be made on a case-by-case basis. See Bragdon v. Abbott, 524 U.S. 624, 641-642 (1998). Therefore, complainant cannot be considered an individual with a disability per se, simply because he has been diagnosed with a certain condition. See Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 565- 566 (1999) (requiring analysis of substantial limitation for individual with monocular vision); Murphy v. United Parcel Service, 527 U.S. 516, 521-523 (1999) (requiring analysis of substantial limitation for individual diagnosed with severe hypertension); Sutton v. United Airlines, 527 U.S. 471, 483 (1999) (requiring analysis of substantial limitation for two individuals who were legally blind without corrective lenses). In determining whether complainant suffers a substantial limitation to a major life activity, the Commission must consider the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). Additionally, the effects of any “[mitigating] measures - both positive and negative - must be taken into account when judging whether that person is ‘substantially limited.'” See Sutton, 527 U.S. at 482. 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. Undiagnosed or uncontrolled diabetes mellitus can lead to hyperglycemia, a condition in which blood glucose levels are too high (generally 140 mg/dl or above). Symptoms include frequent urination, increased thirst, and weight loss. Chronically high levels of glucose can result in problems affecting the kidneys, eyes, and extremities, and in the most extreme circumstances, can lead to coma or death. 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 individuals with disabilities within the meaning of the Rehabilitation Act, while others are not. In Ortiz v. Social Security Administration, the Commission found a substantially limiting impairment where the diabetes 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 denied, EEOC Request No. 05A10357 (May 3, 2002). In the present case, there is no dispute that complainant has diabetes. He was diagnosed with the disease in 1995. He maintains control of his condition through his regimen of two shots of insulin per day and through a strict diet. Complainant describes his condition as severe and permanent, and he explains that he adheres to a very strict diet. Complainant's physician also stated that complainant needed to “continue on a diabetic diet and take his med[ications].” Specifically, complainant is required to eat small meals throughout the day in accordance with his insulin therapy.<3> Therefore, we find that complainant has shown that he has an impairment that substantially limits the major life activity of eating. Having satisfied the first prong of the prima facie case for disability, we turn to the second prong, whether complainant was a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m). A qualified individual with a disability is one who has the skill, experience, education, and other job-related requirements of the position in question, and who, with or without reasonable accommodation, can perform the essential functions of the position. Id. Based on the evidence in the record, we find that complainant was qualified for the position in question. The record reflects that complainant does not have any physical restrictions, and that he has performed his duties as a Materials Examiner and Identifier successfully. Moreover, the agency physician's determination that complainant was not medically qualified was based upon the physician's recommendation that complainant should not travel, and not upon the duties of the TDY. In determining whether an individual is qualified, an agency may require as a qualification standard that an individual not pose a direct threat to the health and safety of himself or others. Interpretive Guidance of Title I of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part 1630, § 1630.2(r); Echazabal v. Chevron U.S.A., Inc. 536 U.S. 73 (2002). In order to exclude an individual on the basis of future possible injury, the agency must show there is a significant risk, i.e., a high probability of substantial harm; a speculative or remote risk is insufficient. It must show more than that an individual with a disability seeking employment stands some slightly increased risk of harm. The burden of showing a significant risk is on the agency. Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000). Moreover, such a finding must be based on an individualized assessment of the employee 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. Appendix to 29 C.F.R. Part 1630, § 1630.2(r). A determination of significant risk cannot be based merely on an employer's subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, this requires that the employer gather and base its decision on substantial information regarding the individual's work and medical histories. Mantolete v. Bolger, 767 F. 2d 1416, 1422-1423 (9th Cir. 1985). The agency considered complainant a direct threat to himself by assuming that severe harm could result from complainant's allegedly “uncontrolled” diabetes. The concerns of the agency pertained to future harm. If complainant were on the two shots a day regimen and were to receive the TDY in Germany, the agency physician feared that complainant would risk increased stress, a factor which may affect and aggravate diabetes and insulin dosage, and a disruption to his normal routine and normal dietary regimen, factors which could lead to a “potential risk of serious medical problem such as insulin shock and hyperglycemia . . . [, and] require immediate emergency treatment not necessarily available to the [complainant] at the TDY site.” He also expressed concern that “these conditions c[ould] result in convulsion, coma, or even death.” Conjecturing that an aggravation to complainant's condition could require medical treatment, frequent trips to the Heidelberg Army Medical Center, and a possible need to return complainant to CONUS, the agency physician asserted that “all of these potential problems could affect and compromise the agency's mission.” Despite all of this speculation, the agency did not present any evidence that would show why complainant is prevented from taking two shots of insulin per day while he is traveling to Germany or working in his new position. We further note that the agency has failed to present evidence that complainant has missed any work due to his diabetes. In contrast to the agency physician's findings, complainant's physician stated in his June 4, 2002 letter that complainant's blood sugar was under control.<4> The record reflects that complainant's physician had been monitoring complainant's condition for several months and was best-suited to opine about the level of control complainant had over his diabetes. See Shobert v. Department of the Air Force, EEOC Appeal No. 01991157 (August 29, 2002). Although there was a speculative risk involved, complainant's medical and work histories further rebut the assumption that a significant risk of harm to complainant existed if he were to travel abroad. Complainant averred and the record reflects that he has performed his duties in a fully successful manner and has no physical restrictions, with the exception that he is required to eat small meals throughout the day. In this respect, the agency physician based his decision to deny complainant's TDY on complainant's morning blood sugar self-monitoring of 244 mg/dl; the June 4, 2002 letter from complainant's physician, which stated that complainant's diabetes was under good control; and one blood sugar test ordered by the agency physician, which resulted in a blood sugar reading of 180 mg/dl. The agency physician, however, never contacted complainant's physician,<5> and did not obtain a complete set of complainant's medical records, but instead based his decision on a one-time reading by complainant and one blood sugar test ordered by the agency. See EEOC v. Northwest Airlines, Inc., 246 F. Supp. 2d 916, 925 (W.D. Tenn. 2002) (Employer did not articulate a legitimate reason for its decision to withdraw offer of employment to insulin-dependent applicant where employer's physician did not personally examine applicant, contact his treating physician, or obtain complete set of his medical records.). In addition, the agency physician made much of the fact that complainant's “HbA1c level of 9.7 remained high,” where “HbA1c of less than 6 is considered to be within normal limits.” He also noted that the one blood sugar test to which he sent complainant resulted in a 180 mg/dl, while a normal range is 70-110 mg/dl.” The Commission finds that the agency's use of a generalized statistic is not necessarily true for complainant, and the agency's conjecture regarding the possibility that complainant may become ill is too remote a future circumstance to be considered a direct threat, one factor of which is the imminence of the potential harm. Although many of the statements the agency made about people with diabetes are true for many individuals who have the disease, the agency failed to take into account complainant's medical history and work history and to look past the generalizations about what it means to have diabetes when it made the decision not to recommend him for a TDY. See Harrison, supra; Selix, supra. By engaging in assumptions about complainant's experience with his health condition, the agency officials did not conduct an individualized assessment of his condition. Although the agency physician used some objective measurements and made an effort to weigh the potential harm of complainant being sent to Germany, the agency used generalizations to arrive at the conclusion that complainant presented a direct threat. Complainant's successful work history and his physician's finding that his diabetes is “under control” shows that complainant is capable of performing the essential functions of the TDY assignment. Complainant is a person who is currently able to control his diabetes. He has the qualifications necessary to perform a TDY assignment. Accordingly, we find that complainant is a qualified individual with a disability, and that the agency has not shown that his diabetes constitutes a direct threat, either to himself, or others. Complainant has met his burden of establishing that he was subjected to disability discrimination when the agency improperly denied complainant the TDY to Germany in violation of the provisions of the Rehabilitation Act. When discrimination is found, the agency must provide the complainant with an equitable remedy that constitutes full, make-whole relief to restore him or her to the position he or she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Adesanya v. United States Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). Here, we find that complainant should be placed in a TDY assignment and receive any backpay or costs he incurred due to the agency's denial of the TDY assignment. Moreover, he shall have the opportunity to establish a causal relationship between the agency's denial of the TDY assignment and any compensatory damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). CONCLUSION Therefore, after a careful review of the record, including complainant's contentions on appeal, the agency's response, and arguments and evidence not specifically addressed in this decision, we reverse the agency's final decision and remand this case to the agency to take remedial actions in accordance with this decision and Order below. ORDER The agency is ordered to take the following remedial action: 1. The agency shall place complainant in the next available TDY assignment.<6> Complainant shall be given a minimum of fifteen (15) days from receipt of the offer of placement within which to accept or decline the offer. Failure to accept the offer within the time period set by the agency will be considered a rejection of the offer, unless complainant can show that circumstances beyond his control prevented a response within the time limit. 2. Within sixty (60) calendar days of the date this decision becomes final, the agency is directed to award complainant back pay and costs, with interest, for all wages and benefits, if applicable, for losses incurred as a result of the agency's denial of the TDY assignment. The agency shall determine the appropriate amount of back pay, interest, and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501(c). The complainant shall cooperate in the agency's efforts to compute the amount of back pay, costs, 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, costs, 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. 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." 3. The agency shall conduct a supplemental investigation on the issue of complainant's entitlement to compensatory damages and shall afford complainant an opportunity to establish a causal relationship between the agency's denial of the TDY assignment and any pecuniary or non-pecuniary losses. Within fifteen (15) calendar days of the date this decision becomes final, the agency shall give complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date complainant receives the agency's notice. The complainant shall cooperate in the agency's efforts to compute the amount of compensatory damages, and shall provide all relevant information requested by the agency. The agency shall complete the investigation on the claim for compensatory damages within thirty (30) calendar days of the date the agency receives complainant's claim for compensatory damages. Thereafter, the agency shall issue a final decision on the issue of compensatory damages in accordance with 29 C.F.R. § 1614.110. The supplemental investigation and issuance of the final decision shall be completed within one hundred and twenty (120) calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer, as referenced below. 4. The agency shall provide training to all the management officials responsible for this matter in their duties and obligations under the Rehabilitation Act. The Commission does not consider training to constitute a disciplinary action. 5. The agency shall consider taking disciplinary action against the management officials identified as being responsible for denying complainant the TDY assignment. The agency shall report its decision. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 6. The agency is further 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 other benefits due complainant, and the agency's decision regarding compensatory damages, including evidence that the corrective action has been implemented. 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. POSTING ORDER (G0900) The agency is ordered to post at its Defense Distribution Center Red River, Texarkana, 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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: ______________________________ Stephen Llewellyn Acting Executive Officer Executive Secretariat ____08-10-04______________ Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 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 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 Defense Logistics Agency, Defense Distribution Center Red River, Texarkana, Texas facility confirms its commitment to comply with these statutory provisions. The Defense Logistics Agency, Defense Distribution Center Red River, Texarkana, Texas facility supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The Defense Logistics Agency, Defense Distribution Center Red River, Texarkana, Texas facility has been found to have discriminated against an employee when the agency denied an employee an overseas tour of duty (TDY). The Defense Logistics Agency, Defense Distribution Center Red River, Texarkana, Texas facility has been ordered to provide the employee with a TDY assignment, backpay and costs, and compensatory damages, and to provide training regarding the Rehabilitation Act to appropriate managers. The Defense Logistics Agency, Defense Distribution Center Red River, Texarkana, Texas 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. The Defense Logistics Agency, Defense Distribution Center Red River, Texarkana, Texas facility 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 1 According to the National Institute of Diabetes and Digestive and Kidney Diseases of the National Institute of Health (NIDDK), blood sugar levels before meals of 80-120mg/dl and at bedtime of 100-140 mg/dl are within normal limits. 2 The agency physician indicated that he based his decision on complainant's current medical condition, as well as Chapter 339 of the Federal Personnel Manual, Appendix A, Qualifications Guidelines for Specific Medical Conditions, paragraph A-1 (d), positions to remote locations or overseas, which states: Positions overseas or in remote locations are subject to the same medical standards that would apply to similar positions in other locations. However, the availability of necessary medications or proper treatment for medical conditions may be valid considerations in determining whether a particular candidate is qualified for assignment overseas or to a remote location. 3 Individuals with diabetes plan mealtimes in accordance with their insulin therapy, and after measuring blood glucose levels one or more times a day, an individual adjusts the dose of insulin as needed. 4 We note that, although the agency argues on appeal that complainant's physician did not clear complainant for travel, the fact that his physician stated that his blood sugar was under control is sufficient. The physician was not required to specifically state that complainant was able to travel. Moreover, we find that, to the extent the agency considered the June 4, 2002 letter in making its decision to disqualify complainant from the TDY, the agency physician quoted said letter in his affidavit, and the AJ considered the content of the letter in arriving at his decision, the letter is admissible as it does not constitute new evidence. 5 We note that complainant's supervisor did speak with complainant's physician to describe the type of statement the agency was seeking. 6 To the extent complainant may desire an overseas TDY as remedy for his complaint as opposed to a domestic one, complainant shall make his preference known to the agency.