01976712
02-23-1999
Myra P. Husk, Appellant, v. Donna E. Shalala, Secretary, Department of Health & Human Services, Agency.
Myra P. Husk v. Department of Health & Human Services
01976712
February 23, 1999
Myra P. Husk, )
Appellant, )
)
v. ) Appeal No. 01976712
) Agency No. HCF-092-95
Donna E. Shalala, ) Hearing No. 120-96-5061X
Secretary, )
Department of Health & )
Human Services, )
Agency. )
________________________________)
DECISION
On September 3, 1997, Myra P. Husk (appellant) timely appealed the
final decision of the Department of Health & Human Services (agency),
dated August 8, 1997, concerning her complaint of unlawful employment
discrimination. In her complaint, appellant had alleged that agency
officials discriminated against her on the bases of a physical disability
(hearing impairment) and/or her race (white), in violation of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq., and the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., when:
(1) she was denied reasonable accommodation to her hearing impairment
in the form of a failure to provide her with amplification equipment
in order to effectively use the telephone and attend and participate in
agency meetings and seminars;<1> and
(2) she was not selected for the position of Health Insurance Specialist,
GS-13, advertised under Vacancy Announcement No. H-94-126.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
At the time the events at issue arose, appellant had worked for the
agency's Health Care Financing Administration since 1979, and had
been in the position of Health Insurance Specialist, GS-12, since 1988.
The record establishes that appellant had a progressive hearing impairment
which resulted in total loss of hearing in her right ear and a 50% loss
in her left ear. She wore a programmable hearing aid in the left ear,
but frequent ear infections resulted in periodic decreases in her ability
to hear in that ear. The evidence further establishes that appellant's
supervisors were fully aware of her hearing impairment. In fact, in
December 1993, appellant shared information she had received from her
audiologist with her supervisors about a variety of new devices with the
potential of enhancing her hearing ability, including "hearing rooms"
and special headsets.
The record indicates that when her branch switched from AT&T to another
telephone company, appellant received a new telephone which did not
have a volume control, making it very difficult for appellant to hear
telephone conversations. She attempted to use her own battery-operated
device to enhance the volume, but during long conversations the batteries
would die, leaving her unable to hear. In December 1993, appellant
requested that the agency provide her with a special telephone with
amplification capabilities. Four months later, when she had still not
received the telephone, appellant sought the intervention of an agency
personnel specialist. The personnel specialist was able, within a few
hours, to obtain permission to purchase the telephone and accompanied
appellant to a mall to obtain the phone with a government credit card.
In January 1994, an agency conference was held at a local hotel to
discuss ideas for developing an evaluation system for contractors (the
"CPEP program"). Appellant was scheduled to be one of the participants
at the conference. Several days before the conference was scheduled to
begin, appellant contacted the facilitator to discuss the set-up of the
conference and ways in which she could maximize her ability to hear what
was going on. A discussion ensued between appellant, her supervisor
("Supervisor A") and the facilitator in which they told appellant that
she should not attend the conference because the classroom-type seating
would make it difficult for her to hear. The record establishes that
neither Supervisor A nor the facilitator examined any options which might
have made it possible for appellant to participate in the conference.
As a result of her conversation with the facilitator and Supervisor A,
appellant did not attend the conference. Later, an agency personnel
official testified that there was an agency policy guidance which
required that outside facilities must be accessible to individuals with
disabilities like appellant. The facilitator said he was vaguely aware
of this policy. Appellant asserted that she was harmed by not attending
the conference because five continuing subgroups were established, and
various employees volunteered to serve as coordinators of the groups.
Because she did not attend the conference, appellant had no opportunity
to serve as one of these coordinators.
In the fall of 1994, the position of Health Insurance Specialist, GS-13,
was advertised under Vacancy Announcement No. H-94-126. Appellant
submitted an application, and along with six other applicants, was placed
on the Best Qualified list which was forwarded to the Division Director
("Selecting Official") (white). The Selecting Official had Supervisor
A (white) serve as recommending official. Supervisor A reviewed each
candidate's application materials and conducted interviews. Following his
interviews, he met with the Selecting Official and recommended a candidate
other than appellant (the "selectee") (black female, no disabilities).
The Selecting Official concurred with his recommendation.
The record establishes that the selectee held the same position
as appellant at the time of her selection and was also supervised
by Supervisor A. Appellant had received "outstanding" performance
appraisals from Supervisor A, while the selectee had received "excellent"
ratings. Supervisor A testified that he chose the selectee because she
exhibited many of the skills he was looking for in terms of planning,
coordination and keeping projects on schedule. He stressed the role she
had played in the redesign of the CPEP program by coordinating the work
of the five subgroups, as well as personally coordinating the subgroup
on payment safeguards. He noted that the selectee had received an award
in April 1994 for her work on the CPEP report. In comparing appellant
and the selectee, Supervisor A said they had equal knowledge in terms
of the functions of the unit. He said, however, that the selectee had
volunteered for additional assignments, showing greater initiative and
leadership potential.
The Selecting Official said she concurred with Supervisor A's
recommendation of the selectee. She agreed that the selectee showed more
leadership potential and initiative by chairing the payment safeguard
work group and coordinating all the CPEP subgroups.
Appellant asserted that the choice of the selectee was influenced, at
least in part, by the agency's affirmative employment goals. The record
indicates that the agency's EEO office prepared a memorandum which
accompanied the selection package for the vacancy at issue indicating
that both white and black females were underrepresented at the GS-13
level. The record establishes that the Selecting Official received this
memorandum.
In December 1994, another agency meeting was held in outside conference
facilities. On the morning of the first day of the three-day meeting,
appellant approached Supervisor A and told him she was having difficulty
hearing the participants and asked about the availability of a microphone.
He referred her to the Division Director, who in turn, referred her to a
member of her staff. In the end, appellant was informed that no money had
been budgeted for a microphone and one was not available. At the hearing,
a representative of the hotel where the meeting took place testified that
microphones were provided for meeting rooms when requested. While the
Division Director requested that participants speak louder, they soon
forgot to, and appellant said that she was unable to hear much of the
meeting.
On December 28, 1994, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On June 11, 1997, following a hearing at which ten witnesses testified,
the AJ issued a decision which concluded that the evidence supported
a finding of no race or disability discrimination with regard to the
decision not to select appellant for the position of Health Insurance
Specialist, GS-13. The AJ found that the evidence supported the
agency's contention that the best qualified candidate was selected for
this position. With regard to appellant's failure to accommodate claims,
the AJ concluded: (1) appellant was not denied reasonable accommodation
in connection with her request for a special telephone because it was
eventually provided to her; (2) appellant was not denied reasonable
accommodation with regard to her request for a microphone at the December
1994 meeting because she waited until the start of the meeting to request
the accommodation; and (3) the agency did discriminate against appellant
when she was denied reasonable accommodations which would have enable
her to attend the January 1994 meeting.
On August 8, 1997, the agency issued its final decision in which adopted
the AJ's decision in its entirety, including the remedial actions
recommended for its discriminatory conduct with regard to the January
1994 meeting. It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission,
as an initial matter, concurs with the agency's finding that it failed to
reasonably accommodate appellant's hearing impairment when its officials
made no effort whatsoever to explore ways of allowing appellant to fully
participate in the January 1994 CPEP conference. In fact, these officials
actively discouraged appellant from attending the conference because
of her hearing impairment. As a result, appellant was deprived of the
opportunity to participate in the conference and, most significantly,
to volunteer to coordinate one of the subgroups which was developed
from the conference. As the agency concedes, this incident was a
clear violation of the agency's affirmative duty to provide reasonable
accommodation to a qualified employee with a disability.
The Commission further finds that the agency, and the AJ, erred in
entering a finding of no disability discrimination with regard to the
agency's failure to accommodate appellant's hearing impairment concerning
her request for a special telephone and a microphone at the December
1994 conference. The agency failed to establish that it would have
caused an undue hardship on its operations to provide appellant with
the special telephone without a four month delay or to provide for the
use of a microphone by participants at the December 1994 conference.
The evidence establishes that when appellant sought the intervention of
a personnel specialist in March 1994 concerning her stalled telephone
request, the specialist was able to procure the telephone within one day.
The evidence also clearly establishes that microphones were available
at the December 1994 conference site upon request, and the agency should
have responded promptly to appellant's concerns about not being able to
hear the participants. The AJ's reliance on the fact that appellant
did not request the microphone until the conference had started is
misplaced, because the agency's officials involved were well aware
of appellant's hearing difficulties in large meetings and should have
made arrangements for amplification without appellant having to make
the request. Moreover, once appellant again brought the issue to the
agency's attention, officials should have responded quickly to this simple
request, rather than making no real effort to provide this much needed
reasonable accommodation. Based on the evidence concerning these three
incidents, the Commission is troubled by the agency's pattern of failing
to make a good faith effort to provide appellant with the reasonable
accommodations she needs to fully participate in the workplace. As a
result of this lack of good faith, the Commission will order the agency
to consider appellant's request for compensatory damages.<2> See Teshima
v. United States Postal Service, EEOC Appeal No. 01961997 (May 5, 1998).
With regard to appellant's claims of discrimination regarding the failure
to select her for the Health Insurance Specialist, GS-13, position, the
Commission concurs with the AJ and agency's finding that the evidence
does not establish that this action occurred because of appellant's race.
Appellant has argued that the responsible agency officials (all white)
chose the selectee (black female) in order to further the agency's
affirmative employment goals. However, the evidence establishes that
the memorandum prepared by the agency's EEO office, which accompanied
the selection package in this case, indicated that both black and
white females were underrepresented at the GS-13 level. Therefore,
there is no reason to believe that the responsible agency officials
would have particularly targeted a non-white candidate for selection.
The selection of appellant, as a white female, was just as likely if
the responsible officials were making their decision solely based on
affirmative employment goals.
However, the Commission disagrees with the finding that appellant's
nonselection was not tainted by disability discrimination. Both the
recommending and selecting officials testified that appellant and
the selectee were equally qualified for the position in question.
They also both emphasized that the major factor which distinguished
the two candidates was the selectee's display of initiative and
superior leadership skills as evidenced by her work on the CPEP, and
most particularly, her volunteering to serve as the coordinator of
one of the CPEP subgroups. While, on its face, this reason appears
nondiscriminatory, the evidence clearly establishes that the selectee
was given the opportunity to volunteer to serve as a CPEP subgroup
coordinator at the January 1994 conference, which, as even the agency
concedes, appellant was discriminatorily denied attendance because of her
disability. In other words, due to the agency discriminatory actions,
appellant was deprived of the opportunity to acquire the one credential
which the selecting officials testified made the critical difference
in their selection decision. The Commission finds that the agency has
failed to prove that in the absence of this tainted motivating factor,
it still would not have selected appellant. See Crider v. Department
of Veterans Affairs, EEOC Request No.05960632 (October 16, 1998). In
light of the responsible agency officials' testimony that appellant and
the selectee were equally knowledgeable about the position in question,
and the fact that appellant had more seniority and superior performance
evaluations, the Commission finds that it is more likely than not that,
absent the agency's discriminatory actions in depriving appellant of the
opportunities provided at the January 1994 conference, appellant would
have been selected for the position in question.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE those portions of the agency's final decision which
found no discrimination based on disability. The Commission affirms that
agency's finding of no race discrimination and its finding that appellant
was discriminated against on the basis of her disability with regard
to the January 1994 meeting. In order to remedy appellant for its
discriminatory actions, the agency shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall place appellant in the position of Health
Insurance Specialist, GS-13, or a substantially equivalent position,
retroactive to the date the selectee assumed the position. Within sixty
(60) calendar days of the date this decision becomes final, the agency
shall provide appellant with an appropriate award of back pay, with
interest, reflecting any salary and/or benefits she was denied as a
result of the agency's discriminatory failure to select her for the
position in question.
(B) Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall meet with appellant and determine any reasonable
accommodations she needs and, in particular, what amplification equipment
and/or other accommodations she may need to fully participate in agency
meetings and conferences. Prior to any scheduled meeting or conference,
agency officials shall meet with appellant to ensure that adequate
measures have been taken to maximize appellant's ability to hear the
participants.
(C) In light of its ongoing lack of a good faith effort to reasonably
accommodate appellant's hearing impairment, the agency shall conduct
a supplemental investigation pertaining to appellant's entitlement to
compensatory damages incurred as result of the agency's discriminatory
actions. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Rivera v. Department of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). See also, Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998); Jackson v. United States Postal Service, EEOC Appeal
No. 01923399 (November 12, 1992), request for reconsideration denied,
EEOC Request No. 05930306 (February 1, 1993). The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages. Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights.
(D) The agency shall provide training to the officials responsible for
its actions in this matter in their responsibilities under Rehabilitation
Act.
(E) The agency shall post at its Health Care Financing Administration
offices 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.
(F) 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 any payments and/or other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
Feb 23, 1999
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found
that a violation of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Health Care Financing Administration supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Health Care Financing Administration has been found to have
discriminated against the individual affected by the Commission's finding
on the basis of her hearing impairment when she was not provided with
reasonable accommodations to allow her to fully participate in agency
activities and when she was not selected for the position of Health
Insurance Specialist, GS-13. The Commission has ordered the agency
to retroactively place this individual in the position in question
with an award of back pay, the provision of appropriate reasonable
accommodations, and consideration of appellant's claim for compensatory
damages. The Health Care Financing Administration will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The Health Care Financing Administration 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 At the hearing stage, appellant withdrew her race claim with regard to
Issue No. 1 of her complaint.
2 The AJ did not award appellant compensatory damages because she
found appellant had not made a request for such damages. However, the
Commission finds that appellant did make such a request in her affidavit
submitted during the agency's investigation into her complaint.