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.