01A13060
08-27-2002
James M. Moynihan, Complainant, v. Roderick R. Paige, Secretary, Department of Education, Agency.
James M. Moynihan v. Department of Education
01A13060
August 27, 2002
.
James M. Moynihan,
Complainant,
v.
Roderick R. Paige,
Secretary,
Department of Education,
Agency.
Appeal No. 01A13060
Agency No. ED-9932000
DECISION
Complainant, who is congenitally blind with zero visual acuity,
timely initiated an appeal from a final agency decision concerning his
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.<1> The record reveals that complainant began
working in the Office of Civil Rights (OCR) in the agency's Kansas
City, Missouri facility in 1980. In March 1999, he was employed as a
GS-12 Equal Opportunity Specialist. Complainant applied for a GS-13
Equal Opportunity Specialist position and was included on the best
qualified list. All of the applicants participated in oral interviews.
An allegation arose that one of the applicants had prior notice of the
specific questions that were going to be asked during the oral interview.
Although an internal investigation concluded that this was not true,
it was decided that a written examination would also be administered.
According to the agency, the scheme devised for administering the
written questions had two basic features: protection against the advance
disclosure of the questions or even when the examination was to be
administered and assurance that the written responses would be judged
without identification of the applicant. The agency believed that the
anonymity of the applicants was so important to the integrity of the
process that �a somewhat elaborate� system was put in place to ensure that
the identity of the applicant was not revealed to the individual who would
be scoring the responses. Specifically, a test identification number was
assigned so that the applicants' names would not appear on the responses.
The applicants were also given a choice whether to handwrite or word
process their responses. The handwritten responses were then transcribed
by the OCR Director's secretary so that the individual scoring the answers
(the �scorer�) could not identify the applicants by their handwriting.
Finally, the transcribed responses were proofread by the applicants
before being submitted to the scorer, who, after evaluating and scoring
the responses, submitted them to the selecting official.
During complainant's tenure with the agency, he was provided with
various forms of accommodation, including assistive devices, readers
and private office space. In order for complainant to take the written
examination, he was provided a computer with synthesized speech, and
the examination was administered by a proctor in complainant's office.
The role of the proctor was to read the questions to complainant and to
monitor the exam. The agency found that it was not clear from the record
whether the computer's synthesized speech caused complainant's responses
to be audible to the proctor or simply visible on screen and in print.
Either way, the agency found that the record supported a finding that
there was sufficient exposure, whether visual or auditory, to make
complainant's responses recognizable to the proctor. Because the proctor
was the same individual as the scorer, complainant did not enjoy the
anonymity enjoyed by the other applicants during the scoring process, a
process which, because it required the scorer to evaluate the applicants'
responses, was inherently subjective. Five of the nine applicants were
selected for the position based on their overall scores from the oral
interviews and the written examinations. Complainant's score was the
sixth highest score, and he was not selected.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 6, 1999, alleging that he was discriminated against
on the basis of his disability when he was not selected for a GS-13
Equal Employment Opportunity Specialist position in March 1999. The
investigative report also supports a finding that complainant claimed
he was denied reasonable accommodation during the selection process.
At the conclusion of the investigation, complainant declined a hearing
before an EEOC Administrative Judge and requested that the agency issue
a final decision.
In its final decision, the agency found that complainant was a qualified
individual with a disability insofar as he has a vision impairment
which substantially limits his ability to see and that he was included
on the certificate of eligibles for the GS-13 position at issue.
The agency found that although complainant established a prima facie
case of disability discrimination in regard to his non-selection, he
did not prove, by a preponderance of the evidence, that the agency's
legitimate, nondiscriminatory reason for not selecting complainant,
namely that his score was not one of the five highest scores, was a
pretext for discrimination. However, the agency found that complainant
was denied reasonable accommodation during the application process and
that he was discriminated against under a theory of disparate treatment
when he was denied anonymity. As a result, the agency ordered the OCR to
revise its reasonable accommodation procedures; to provide eight hours
of disability awareness and reasonable accommodation training to all
supervisors and managers in its Kansas City, Missouri facility; and to
post an appropriate notice. The agency did not award complainant with
retroactive placement in the position with back pay and did not address
whether complainant was entitled to the compensatory damages he requested
in his formal complaint.
On appeal, complainant requests that the Commission award him individual
relief. In a brief submitted by counsel, complainant requests that
the complaint be remanded for the �development of facts sufficient
for the fact finder to make appropriate credibility determinations.�
In this regard, complainant argues that one of the selectees had prior
knowledge of the �type� of questions, although not the specific questions
themselves, which were going to be asked during the oral interview.
Complainant argues that this is relevant because the OCR's internal
investigation was conducted by the scorer, and it is complainant's
contention that the scorer's �evasive� answers to questions posed by
the EEO investigator indicate discriminatory animus. The agency did
not respond to complainant's brief.
We accept complainant's appeal and examine the agency's final decision
under a de novo standard of review to determine whether a preponderance of
the evidence supports a finding of unlawful disability discrimination.
29 C.F.R. � 1614.405(a). We find that it does. In reaching this
conclusion, we discern no reason to disturb the agency's own finding that
it denied complainant reasonable accommodation during the selection
process when it denied him anonymity.<2> We note that the agency
specifically found that under the circumstances, it was not sufficient
for the agency to simply allow complainant to use equipment necessary
for him to generate a written response because a critical element of
the application process with regard to the written examination involved
safeguarding anonymity. Thus, to have been reasonable, the accommodation
had to provide complainant with anonymity. The agency further found that
to provide such an accommodation would not have caused an undue hardship.
29 C.F.R. �� 1630.2(o) and (p).
Having determined that complainant was discriminated against when he was
denied reasonable accommodation during the selection process, we find
the agency erred in requiring complainant to prove by a preponderance of
the evidence that the agency's legitimate, nondiscriminatory reason for
not selecting him was a pretext for discrimination. In reaching this
conclusion we note that EEOC Regulation 29 C.F.R. � 1614.501 provides
in part that:
When an agency, or the Commission, finds that an employee of the agency
was discriminated against, the agency shall provide relief, which shall
include, but need not be limited to, one or more of the following actions:
(1) Nondiscriminatory placement with back pay computed in the manner
prescribed by 5 C.F.R. 550.805, unless clear and convincing evidence
contained in the record demonstrates that the personnel action would
have been taken even absent the discrimination.
29 C.F.R. � 1614.501(c)(1). The burden is on the employer to show by
clear and convincing evidence that even in the absence of discrimination,
complainant would not have been selected for the GS-13 position. See
Pryor v. United States Postal Service, EEOC Request No. 05980405 (August
6, 1999); Gimbel v. United States Postal Service, EEOC Appeal No. 01982882
(September 5, 2001). Placing such an onerous burden on the employer is
proper, inasmuch as the employer's unlawful act caused the difficulty in
determining what would have resulted if there had been no discrimination.
See Dereyna et al. v. Department of the Navy, EEOC Appeal No. 01980077
(January 19, 2001). Thus, in a case such as this one, complainant is
entitled to retroactive placement in the position, "unless clear and
convincing evidence contained in the record" demonstrates that, even
absent discrimination, complainant would not have been selected for the
position he desired. See Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976).
In its final decision, the agency refused to concede that complainant's
anonymity was compromised by the scorer's dual role as the proctor.
However, we find under the facts set forth above, that complainant's
anonymity was compromised by the proctor's dual role as the scorer.
We further find that, in light of the emphasis the agency placed on the
importance of anonymity and the �somewhat elaborate� ends to which it went
to ensure anonymity for the other applicants, complainant's anonymity was
central to the integrity of the subjective scoring process. Accordingly,
since the agency's only explanation for not selecting complainant was
because of his score, we find that the agency has failed to prove by
clear and convincing evidence that had complainant enjoyed the anonymity
provided to the other applicants, it would not have selected him for
the GS-13 position. We therefore find that complainant is entitled to
retroactive promotion to the GS-13 position with appropriate back pay.
We note that complainant has raised a cognizable claim for compensatory
damages which are available in the federal sector EEO process. West
v. Gibson, 527 U.S. 212 (1999). When an agency fails to provide an
individual with reasonable accommodation for his disability, the agency
will not be relieved of its obligation to pay appropriate compensatory
damages, to the extent proven, unless it acted in good faith in attempting
to make reasonable accommodation. See Teshima v. United States Postal
Service, EEOC Appeal No. 01961997 (May 5, 1998). Upon review of the
record before us, the Commission concludes that although the agency
ultimately failed to make reasonable accommodation during the selection
process, its efforts to do so were made in good faith. See Ghannam
v. Agency for International Development, EEOC Appeal No. 01990574
(November 9, 2000), request for reconsideration denied, EEOC Request
No. 05A10146 (August 2, 2001). We therefore conclude that complainant
is not entitled to compensatory damages.
The agency's final decision, finding that complainant was denied
reasonable accommodation, is affirmed, and the relief granted complainant
is modified for the reasons set forth above. The agency is directed to
take action consistent with the Order below.
ORDER
1. Within sixty (60) days of this decision becoming final, the agency
shall offer complainant the GS-13 Equal Opportunity Specialist position.
Complainant shall be given a minimum of fifteen days from receipt of the
offer 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. The agency shall award complainant back pay with interest and other
benefits due, for the period from March 1999 to the date he accepts
or declines to accept the GS-13 position. The agency shall determine
the appropriate amount of back pay with interest and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty
(60) days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of back
pay and benefits due, and shall provide 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. 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.�
To the extent it has not already done so, the agency shall provide eight
hours of disability awareness and reasonable accommodation training to
the appropriate supervisors and managers in its Kansas City, Missouri
facility and shall review its reasonable accommodation procedures to
insure against violations of the Rehabilitation Act.
POSTING ORDER (G0900)
The agency is ordered to post at its Kansas City, Missouri 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).<3> 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 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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 27, 2002
__________________
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, as amended,
29 U.S.C. � 791 et seq. has occurred at the agency's Kansas City,
Missouri facility (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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have denied an employee reasonable
accommodation for a disability during a competitive selection process.
The agency was ordered to award the employee retroactive promotion with
back pay and to pay reasonable attorney's fees and costs. The agency was
also ordered to provide appropriate training to this facility's managers
and supervisors. 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: _________________
29 C.F.R. Part 16141 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 After determining that complainant was denied reasonable accommodation,
the agency then determined that complainant was discriminated against
when he was deprived of anonymity while the other applicants were
granted anonymity. We find that, in so doing, the agency framed the
claim concerning the denial of reasonable accommodation as a claim of
disparate treatment. We find that this was inappropriate because the
claims are distinct, as are the theories of liability that flow from them.
To establish discrimination under a reasonable accommodation theory, no
showing of intent is required while under a theory of disparate treatment,
a showing of intentional discrimination is required. Moreover, we
find that the agency's analysis of the �reasonable accommodation turned
disparate treatment claim� is incorrect whether the adverse treatment
sustained by complainant is considered as either a denial of accommodation
(because complainant was not similarly situated to applicants who did
not need accommodations, thereby defeating his prima facie case) or a
denial of anonymity (because the denial of anonymity does not state a
claim for which relief can be granted).
3 A prevailing party, for purposes of obtaining attorney's fees, is
one who succeeds on any significant issue, and achieves some of the
benefit sought in bringing the action. Because complainant has obtained
personal relief, he is a "prevailing party" entitled to attorney's fees.
See Davis v. Department of Transportation, EEOC Request No. 05970101
(February 4, 1999).