Mary Kauppila, Complainant,v.Mike Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMay 17, 2007
0720040093 (E.E.O.C. May. 17, 2007)

0720040093

05-17-2007

Mary Kauppila, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.


Mary Kauppila v. Department of Health and Human Services

0720040093

5/17/07

.

Mary Kauppila,

Complainant,

v.

Mike Leavitt,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 0720040093<1>

Agency No. IHS03401

Hearing No. 120-A2-1010X

DECISION

Following its May 11, 2004 final order, the agency filed a timely appeal

which the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,

the agency requests that the Commission affirm its rejection of an EEOC

Administrative Judge's (AJ) finding that the agency discriminated against

complainant on the basis of her disability (myopic macular degeneration).

For the following reasons, the Commission reverses the final order and

affirms the AJ's finding of discrimination.

ISSUE PRESENTED

Whether the AJ's decision, which was not implemented by the agency's

final order, properly found that the agency discriminated against

complainant on the basis of disability (myopic macular degeneration)

when, on January 16, 2001, the agency withdrew a job offer.

BACKGROUND

Complainant, a Contract Specialist, employed at the agency's Indian Health

Service, in Albuquerque, New Mexico, filed a formal EEO complaint with

the agency on February 27, 2001, alleging that the agency discriminated

against her in violation of Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., on the basis

of disability (myopic macular degeneration<2>) when on January 16, 2001,

the agency withdrew a job offer for the position of Grants Management

Specialist, GS-1101-12/13, at the Indian Health Service in Rockville,

Maryland.

The record indicates that complainant applied for and was selected

for the Grants Management Specialist position at the agency's Indian

Health Service in Rockville, Maryland (�facility�). At the time of her

selection, complainant was employed by the agency as a GS-12 Contracts

Specialist in Albuquerque, New Mexico. The record reflects that another

selectee for the Grants Management Specialist position began working

for the agency in December of 2000, as the facility's Chief Grants

Management Officer (�Officer�) needed the selectees to begin work as

soon as possible due to an increased workload. The record indicates

that complainant stated in a December 19, 2000 e-mail to the facility's

Director, Division of Acquisition Management (�Director�) that she

was scheduled for eye surgery on December 27, 2000. In the e-mail,

complainant asked for a delay in her start date to January 28, 2001, to

allow for sufficient time for a post-operative examination by her doctor.

Complainant specifically asked �for reasonable accommodations because

of my physical handicap.� She also stated that she had not received

any official notification of her selection by the facility.

The record indicates, however, that the Officer stated that complainant

did not request an accommodation, nor, according to the Officer,

did complainant indicate that her eye condition was a disability.

AJ's Decision at 5-6. The Officer stated that she told complainant that

the agency would try to allow her to begin working in January of 2001.

The Officer's recommendation to hire complainant was supported by the

Director provided that complainant could begin work in January/February

of 2001. Hearing Transcript at 28. Complainant stated that she

informed the Officer that she had macular degeneration in her right

eye which caused her to have problems seeing. AJ's Decision at 6.

Further, complainant stated that she underwent laser treatment for

retinal bleeding in September of 2000, but the treatment did not stop

the bleeding. Subsequently, laser treatment did stop the retinal bleeding

and complainant regained some sight in her right eye.

The agency stated that it attempted to accommodate complainant by

offering her various starting dates in December of 2000 and January

of 2001. However, the record indicates that the agency did not make any

inquiries as to the reasons for complainant's request for a starting date

at the end of January of 2001, nor did the agency request information

from complainant regarding her medical condition although she sent the

e-mail to the Director requesting a start date of January 28, 2001 as

a reasonable accommodation for her disability. Investigative Report

(IR) at Exhibit 3. Complainant later informed the facility that she

could report to work on January 14, 2001, but would have to return to

New Mexico for follow-up appointments with her physician. The agency

issued complainant a letter dated January 11, 2001, instructing her to

report to work on January 17, 2001.<3> Complainant made arrangements

to report to the facility and placed her home in New Mexico for sale,

but cancelled her flight to Maryland when she was unable to find lodging

accommodations due to the presidential inauguration. On January 16,

2001, the Acting Division Director withdrew the job offer to complainant.

IR at Exhibit 3. The Acting Division Director stated that she withdrew

the job offer as she did not consider complainant to be a �team player�

and she was not cooperating in starting the position effective January

17, 2001. The position was later filled in July of 2001.

PRIOR ADMINISTRATIVE DECISIONS

Believing she was the victim of discrimination, complainant sought EEO

counseling and filed the formal complaint of discrimination. At the

conclusion of the investigation, complainant was provided a copy of the

investigative report and requested a hearing before an AJ. On April 12,

2002, the AJ issued a decision without a hearing finding that complainant

was not an individual with a disability. In so finding, the AJ noted

that complainant was not substantially limited with respect to any major

life activities because she could read, write, use a computer, drive,

and perform daily activities by compensating for the distorted vision in

her right eye with the normal vision in her left eye. The agency's final

order implemented the AJ's finding. Complainant appealed the agency's

final decision to the Office of Federal Operations. In Mary Kauppila

v. Department of Health & Human Services, EEOC Appeal No. 01A22950

(November 18. 2003), the Commission determined that the AJ erred in

issuing a decision without a hearing, since the evidence in the record

contained genuine issues of material fact; namely that there were disputes

as to whether: (1) complainant's macular degeneration was a permanent or

temporary impairment; (2) complainant's macular degeneration substantially

restricted her in the ability to see or perform a class of jobs or a

broad range of jobs as compared to the average person having comparable

training skills and abilities; and (3) complainant's compensation for

the reduced vision in her right eye by closing her left constituted a

mitigating measure. The Commission also noted that the AJ failed to

rule on complainant's claim that the agency discriminated against her

when it failed to provide her with a reasonable accommodation regarding

the start date of the position. The Commission reversed and remanded

the case for a hearing on the merits.

A hearing was conducted by the same AJ as in the previous case on March

9 and 10, 2004. Following the hearing the AJ issued a decision finding

that the agency discriminated against complainant when it failed to

provide her with a reasonable accommodation. The AJ determined that

complainant was an individual with a disability because she testified

that she has problems reading, writing, and driving. The AJ noted

that complainant's right eye impairment was permanent and that she

suffered from retinal bleeding. The AJ further found that complainant

testified that her vision in her right eye lacked central perception;

she had blurred, double or hazy vision; and she needed to use large font

when using a computer. Additionally, the AJ determined that complainant

suffered from eye strain headaches, and at the time of the complaint,

had 20/200 vision in her right eye, which improved to a range of 20/40

to 20/100, as a result of several medical treatments. The AJ found

that complainant reads documents by placing them within four inches of

her eyes and that she was prescribed bifocals to assist her left eye.

Complainant stated that she had difficulty writing as she had no central

vision in her right eye, and the record establishes that complainant

was blind in her right eye at the time of her hiring by the agency.

AJ's Decision at 8.<4> As a result of these factors, the AJ concluded

that complainant was disabled in seeing and that her condition was

long-term. The AJ also concluded that since the agency did not dispute

that complainant was qualified for the position, complainant established

that she was a qualified individual with a disability.

The AJ next turned to the issue of reasonable accommodation. The AJ

found that the record clearly indicated that complainant requested an

accommodation of her disability. Complainant requested that her start

date be postponed to the end of January 2001 or February 2001. The AJ

determined that the agency failed to engage in an interactive process

with complainant to determine whether it could accommodate her request.

The AJ also found to be a pretext the agency's proffered reason that to

accommodate complainant with a later start date was an undue hardship.

Specifically, the AJ found not credible the agency's argument that it had

accommodated complainant by offering her three start dates. Finally,

the agency's argument that a hiring freeze would be implemented after

the United States President's inauguration was also not convincing to

the AJ. The AJ determined that the freeze was not permanent and the

agency could have advised complainant that her starting date was being

delayed until the restrictions imposed by the new administration were

lifted. The AJ noted that complainant's position was re-advertised and

filled by July 2001. With regard to complainant's claim of disparate

treatment when the agency revoked her job offer, the AJ determined that

complainant failed to proffer sufficient evidence to establish her claim.

The agency's final order rejected the AJ's decision. On appeal,

the agency argues that the AJ erred because: (1) there was no medical

evidence in the record to support the AJ's conclusion that complainant

had a permanent impairment, and she admitted that she had not received

any permanency rating from a physician; (2) complainant produced no

evidence to establish that she was substantially limited to a broad class

or range of jobs; (3) complainant admitted that she was able to perform

major life activities such as reading, driving and working; (4) there

is no evidence that complainant requested a reasonable accommodation

to perform the job she was currently employed in; and (5) although

complainant never requested an accommodation for her eye condition,

the agency postponed her release date repeatedly in order to accommodate

her housing concerns and doctor appointments. In response, complainant

argued that: (1) she proffered sufficient evidence to demonstrate that

her eye condition constituted a permanent impairment; (2) she provided a

number of occupations from which she would be prevented from performing

due to their requirements of depth perception, proportion or distance;

(3) in order to function, she must close her left eye and has great

difficulty with reading, driving and writing; and (4) in fact, she did

request a reasonable accommodation on December 19, 2000.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

FINDINGS AND ANALYSIS

One bringing a claim of discrimination on the basis of disability

has the burden to show that she is an individual with a disability.

Ceralde v. United States Postal Service, EEOC Appeal No. 07A00038

(August 2, 2001). An individual with a disability is defined as one who

(1) has a physical or mental impairment that substantially limits one

or more major life activities, (2) has a record of such an impairment,

or (3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g).

An impairment is substantially limiting when an individual is unable

to perform a major life activity that the average person in the general

population can perform or is significantly restricted as to the condition,

manner or duration under which she 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). Major life activities include seeing.

29 C.F.R. � 1630.2(i).

In this case, complainant has established that she was diagnosed

with the impairment of myopic macular degeneration in her right eye.

Report of Investigation (ROI) Ex. 15. In support of her contention

that this impairment substantially limited the major life activity of

seeing, complainant testified during the hearing that she could not

see out of her right eye from her first treatment in September 2000

until March 2001. HT at 34, 35. Since complainant was completely

blind in her right eye during the time period at issue in this case,

we note that this case bears some similarity to the Commission's

cases determining whether monocular vision is an impairment that

substantially limits complainant's major life activity of seeing.

Notwithstanding, complainant still bears the burden of demonstrating

that she is substantially limited in the major life activity of seeing.

See Sutton v. United Airlines, 527 U.S. 471, 483 (1999); Albertsons,

Inc. v. Kirkinburg, 527 U.S. 555, 565-566 (1999); Murphy v. United Parcel

Service, 527 U.S. 516, 521-523 (1999). In addition, the Commission must

consider any mitigating measures �both positive and negative . . . when

judging whether [complainant] is �substantially limited.'� Albertson's,

527 U.S. at 565-566 (requiring analysis of substantial limitation for

individual with monocular vision).

Complainant alleged that she established that she was substantially

limited with regard to her ability to see: complainant had 20/200

vision in her right eye upon her diagnosis. HT at 34. After receiving

treatment, complainant's vision improved to 20/40 in March of 2001. IR

at Exhibit 15. Complainant's condition is incurable and permanent.

HT at 37. Complainant stated that she was not able to read unless

she covered her right eye and relied on her left eye, and had to hold

a document four inches away to read. Id. at 38-39. Complainant was

given bifocals in November of 2000, but continued to have to cover

her right eye. Id. at 39-40. Complainant suffered from eye strain,

including headaches. Id. at 40. Complainant, however, did testify that

she could read, drive, and use the computer if she covered her right eye

and used the prescribed bifocals, although she stated it was difficult.

Id. at 41- 42. Complainant testified that she did not wish to get an

eye-patch, however, because she �has to use whatever limited vision

[she has] left.� Id. at 42. Complainant testified that after three or

four weeks of training her vision, her left eye became dominant, which

made seeing a �bit easier,� but did not alleviate her symptoms. Id.

at 53-54. Complainant stated that she could not do anything �that

required sharp central vision,� such as quilting or sewing. Id. at 62.

Additionally, we note that complainant's treating physician stated that

her conditions affects her �central vision� in her right eye and that

she has had �numerous difficulties at the workplace.� IR at Exhibit 15.

The Commission concurs with the AJ's finding that complainant's vision

impairments substantially limited her in the major life activity of

seeing. As found by the AJ, substantial evidence supports a finding

that complainant's visual impairments in her right eye caused her

problems with reading, writing and driving. The evidence establishes

that complainant's macular degeneration and retinal bleeding caused

her to lack central perception in her right eye and caused blurred

and double vision. At the time of her hiring by the facility, she

lacked vision in the right eye due to laser treatment to stop her

retinal bleeding. Complainant testified that she needs to use large

font when working at her computer, suffers from eye strain headaches

due to compensating with her left eye and her vision was 20/200 in her

right eye which fluctuated with laser treatments. AJ's Decision at 16.

In addition, complainant stated that she must read documents by placing

them within four (4) inches of her eyes. Id. As such, we concur with

the AJ's finding that complainant is substantially limited in the major

life activity of seeing. Further, like the AJ, we find that the agency

did not dispute complainant's qualifications to perform the essential

functions of the Grants Management Specialist position. We thus find

that complainant is a qualified individual with a disability as defined

by the Rehabilitation Act.

As we find that complainant is covered by the Rehabilitation Act,

the Commission must determine whether the agency discriminated against

complainant by failing to provide an accommodation for her disability.

As found by the AJ, complainant requested an accommodation from the agency

due to her macular degeneration and resulting need for laser surgery

treatment in New Mexico, and thus she sought to begin her new assignment

with the agency in late January or February of 2001. We concur with the

AJ's finding that upon complainant's request to begin her assignment at

the facility at a later date, the agency did not engage in an interactive

process with complainant to determine whether a reasonable accommodation

could be provided to her. As found by the AJ, neither the Officer or

the Director addressed complainant's request for reasonable accommodation

or requested medical documentation related to the surgery she underwent

in December of 2000. As noted by the AJ, complainant's request for a

later starting date at the facility due to her disability and need for

surgery constituted a request for a reasonable accommodation which the

agency was required to provide absent undue hardship.

We also concur with the AJ's finding that the agency failed to proffer

evidence that complainant's accommodation request posed an undue hardship.

Like the AJ, the Commission finds the agency's statement that the delayed

start of complainant's employment at the facility would have caused an

undue hardship to the agency was not credible. AJ's Decision at 19.

In so finding, we note that the evidence establishes that the workload

�crisis� which caused the Officer to want complainant to begin working

as soon as possible, was resolved in January of 2001. Further, we find

that the agency's explanation that the job offer was rescinded due to

a hiring freeze following the presidential inauguration in 2001 did not

constitute an adequate justification for the agency's failure to provide

an accommodation for complainant's disability. The record indicates that

the hiring freeze implemented by the new administration in 2001 was not

permanent, and thus was not an adequate justification for the recision

of the job offer.<5> AJ's Decision at 19. We note that following the

recision of the job offer to complainant, the position was re-advertised

and later filled in July of 2001.

Moreover, we find the agency has proffered no evidence to suggest

that complainant's request for a later starting date could not have

been provided. As found by the AJ, the workload �crisis� which the

agency stated required complainant to begin her new position no later

than January 17, 2001, was resolved due to the work of other staff and

thus we find there is no indication that she could not have been allowed

to start her position on January 28, 2001.<6> As such, we find that the

record contains no evidence to support a finding that allowing complainant

to begin her new position at a later date, or providing an alternative

accommodation, would have posed an undue hardship to the agency. As

noted by the AJ, those responsible for hiring complainant initially

agreed to allow her to begin work as late as February of 2001; however,

the Acting Division Director withdrew the job offer when complainant

did not report for work on January 17, 2001. The agency failed to

engage in the interactive process with complainant following her e-mail

of December 19, 2000 requesting an accommodation.<7> We concur with the

AJ's finding that the agency's statement that it accommodated complainant

by providing her with at least three (3) starting dates is not credible.

AJ's Decision at 19. As such, we concur with the AJ's finding that

the agency discriminated against complainant when it withdrew the job

offer on January 16, 2001.

CONCLUSION

Therefore, after a careful review of the record, including 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.<8>

ORDER (C0900)

The agency is ordered to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall offer complainant the Grants Management Specialist

position which was revoked or a substantially substantial position with

the same promotion potential (GS-12/13). The position shall be located

in Rockville, Maryland or Albuquerque, New Mexico. Complainant shall

have 15 days to accept or reject the position.

2. The agency shall retroactively promote complainant to the GS-12 grade

level from January 2001 when she would have started working in Rockville,

Maryland absent the discrimination.

3. The agency shall pay complainant back pay, with interest, and other

benefits, from January 28, 2001, when she would have been promoted to the

position in Rockville, Maryland absent the discrimination, to the date

of her promotion to that position, pursuant to 29 C.F.R. � 1614.501,

no later than sixty (60) calendar days from 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

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 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.�

4. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall provide training to all involved managers

and supervisors involved in the decision to revoke the job offer to

complainant regarding the agency's obligation to provide reasonable

accommodation under the Rehabilitation Act to qualified individuals

with disabilities, and specifically with respect to the requirements

for visually impaired employees.

5. The agency shall consider taking disciplinary action against the

agency managers involved in the decision to revoke the job offer to

complainant in the instant case. 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. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall pay complainant $5,380.80 for attorney's fees

incurred in the processing of the instant case.

7. 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 verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Indian Health Service facility in

Rockville, Maryland copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty

(60) consecutive days, in conspicuous places, including all places

where notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled �Implementation of the Commission's Decision,� within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory. The

agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant. If

the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has

the right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled �Right to File A Civil Action.� 29

C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil

action on the underlying complaint is subject to the deadline stated

in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 29

C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (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:

______________________________

Stephen Llewellyn

Acting Executive Officer

Executive Secretariat

___5/17/07_______________

Date

1 Due to a new data system, this case has

been redesignated with the above referenced appeal number.

2 Macular degeneration is a disorder that affects the macula

(the central part of the retina of the eye) causing decreased

visual acuity and possible loss of central vision. Available at

http://www.nlm.nih.gov/medlineplus/ency/article/001000.htm#Definition.

3 While the record references an effective starting date of January 14,

2001, we find that the agency sought to have complainant begin work on

January 17, 2001, due to the Martin Luther King, Jr. holiday.

4See also Hearing Transcript (HT) at 34.

5 In this regard, we also note that complainant was already an employee

of the agency in New Mexico.

6 We note that while the agency stated it needed complainant to

start earlier in January of 2001 due to increased workload involving a

Department review of diabetes grants, the record indicates that shortly

after complainant's anticipated start date, the workload problems were

resolved as other staff had assisted in performing responsibilities

related to the agency's diabetes grants. AJ's Decision at 13.

7An agency's failure to engage in the interactive process does not,

by itself, demand a finding that a complainant was denied a reasonable

accommodation. Broussard v. United States Postal Service, EEOC Appeal

No. 01997106 (September 13, 2002). Rather, to establish a denial of

reasonable accommodation, a complainant must show, as the complainant

in this case did, that the failure to engage in the interactive process

resulted in the agency's failure to provide a reasonable accommodation.

Id.

8 The AJ noted that complainant testified that she was not seeking

compensatory damages as she was overwhelmed emotionally at the time the

events in the instant case occurred due to the loss of her eyesight.

AJ's Decision at 22.