01984302
09-26-2001
Pamela Merrill, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Education Activity), Agency.
Pamela Merrill v. Department of Defense
01984302
September 26, 2001
.
Pamela Merrill,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Education Activity),
Agency.
Appeal No. 01984302
Agency No. AEFY9104; AEFY9109
DECISION
In accordance with 29 C.F.R. � 1614.405, the Commission accepts
complainant's appeal from the agency's final decision in the
above-entitled matter. After a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission (EEOC or
Commission) to reverse, in part, and affirm, in part, the agency's
final decision.
BACKGROUND
During the relevant period the agency employed complainant as a fifth
grade primary school teacher at Alconbury Elementary School (AES)
in England. In early 1991, the principal of AES (principal) asked
complainant if she needed an accommodation for her visual impairment.<1>
In response, complainant requested specific assistive devices.<2> After
reviewing medical documentation provided by complainant, the agency
supplied the requested devices. The agency also assigned complainant
a teacher's aide. Complainant subsequently filed a discrimination
complaint alleging that after she requested an accommodation, she was
discriminated against based on disability (legal blindness) and age
(fifty-seven years old) in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., specifically when:
the principal made intimidating and harassing statements while clarifying
questions on a medical form;
the principal gave her a letter assigning an aide to ensure the safety
of the children in her class;
the principal informed her in the presence of a parent that he (the
principal) was mandated to accompany her on a field trip; and
she was denied the opportunity of discussing her specific needs with
a specialist for the visually impaired.
Originally, the agency dismissed the complaint as moot because complainant
ultimately agreed to a classroom aide. However, in Pamela Merrill v.
Department of Defense, EEOC Appeal No. 01941233 (May 2, 1994), the
Commission reversed the agency's finding and remanded the complaint
for a supplemental investigation and issuance of a new final agency
decision (FAD). In Pamela Merrill v. Department of Defense, EEOC
Appeal No. 01952903 (December 12, 1997), the Commission affirmed the
new FAD's finding of no age discrimination but reversed and remanded the
Rehabilitation Act claims. On remand the agency issued its third FAD,
concluding that complainant was not discriminated against on the basis
of her disability. It is from this decision that complainant now appeals.
FINDINGS AND ANALYSIS
Disability<3>
In order to establish a disability discrimination claim under the
Rehabilitation Act, a complainant must demonstrate that: (1) she is an
"individual with a disability"; (2) she is "qualified" for the position
held or desired, i.e. can perform the essential functions with or without
accommodation; and (3) she was subjected to an adverse employment action
because of her disability. See Swanks v. WMATA, 179 F.3d 929, 934
(D.C.Cir. 1999); Heyman v. Queens Village Committee for Mental Health
for Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999).
There is no dispute between the parties that complainant is an individual
with a disability within the meaning of the Rehabilitation Act because
she is substantially limited in the major life activity of seeing.
29 C.F.R. � 1630.2(i). The record contains medical evidence documenting
complainant's visual impairment dating back to 1976. Complainant was
diagnosed with Posterior Vitreous Detachment and Geographic Helicoid
Peripapillary Choroiditis resulting in diminished visual acuity primarily
within her central field of vision. With correction (lenses), complainant
has 20/120 vision in both eyes. Medical submissions indicate that
complainant's impairment will not improve. The medical submissions
also indicate that complainant is affected in performing all activities
requiring normal vision. Complainant's impairment does not prevent
her from seeing objects in her peripheral field of vision; in fact,
with her corrective lenses complainant is able to negotiate hazards
while walking. Complainant is unable to accomplish tasks requiring
rapid eye-hand coordination. Complainant has significant difficulty
reading printed text and performing close work.
The complainant must also show that she is a �qualified� individual with
a disability within the meaning of 29 C.F.R. � 1630.2(m). This section
defines the term qualified individual with a disability as meaning,
with respect to employment, an individual with a disability who,
with or without a reasonable accommodation, can perform the essential
functions of such position. There is no dispute that complainant is
a qualified individual with a disability. The record reveals that
complainant performed her job well, without accommodation, for the ten
years preceding the instant complaint. Accordingly, complainant has
established that she is a qualified individual with a disability.
Issue 1
Regarding complainant's claim that the principal made intimidating and
harassing statements while clarifying questions on a medical form,
we conclude that no adverse action has been established because the
record does not support that the principal made any such harassing
or intimidating statements. On March 13, 1991, the principal asked
complainant to complete Standard Form 78 to establish her entitlement
to an accommodation. The next day complainant, along with complainant's
coworker (CW), met with the principal to discuss certain items on SF-78.
At this meeting complainant alleged that the principal refused to
answer questions, disparaged her for asking them and threatened to
take away accommodations previously offered to her. The principal and
CW categorically deny that any such behavior occurred. In fact, CW
describes the principal as calm and states that she did not observe any
behavior that was intimidating or harassing. Complainant's allegations
about the principal's conduct are not supported by the record.
Issue 4
Regarding complainant's claim that the principal denied her the
opportunity to discuss her specific needs with a specialist (S1) for
the visually impaired, we conclude that no adverse action has been
established because the record does not support that the principal
denied complainant access to S1. In fact the record suggests that
complainant had unrestricted access to S1. The principal denies
forbidding complainant from seeing S1. The principal reports that S1's
job was to assist visually impaired students in agency schools including
one student in complainant's class. The record reveals that complainant
had sessions with S1 regarding her personal need for an accommodation.
In fact, the record reveals that S1 recommended the use of certain
assistive devices which the agency later provided. See n. 2, supra.
Complainant's allegation that the agency denied her access to S1 is not
supported by the record.
Issues 2 and 3
Next, we consider complainant's claim that she was discriminated against
when the agency insisted that she be accompanied by another adult on a
field trip and when over her objection the agency assigned a classroom
aide to ensure the safety of the children in her classroom. In both
instances we find that complainant was subjected to an adverse action.
The Rehabilitation Act makes it unlawful for an agency to discriminate
in regard to job assignments on the basis of disability. 29 C.F.R. �
1630.4(d). By mandating that complainant be accompanied by another
adult on a field trip and assigning the classroom aide, we find that
the agency has removed one of complainant's job assignments; namely,
the duty to ensure the safety of her students, and reassigned that duty
to others. The agency concedes that it took these actions because of
complainant's disability.
Direct Threat
The agency asserts an affirmative defense to disability discrimination,
maintaining that complainant needed another adult in the classroom and
on the off-campus field trip to prevent complainant from posing a direct
threat to her students. Our regulations permit the agency to deny job
assignments on the basis of disability where such an assignment would pose
a direct threat. A �direct threat� is defined as �a significant risk of
substantial harm.� 29 C.F.R. � 1630.2(r). The agency has the burden of
proof regarding whether there is a significant risk of substantial harm.
Massingill v. Department of Veterans Affairs, EEOC Appeal No. 01964890
(July 14, 2000). A determination as to whether an individual poses such
a risk cannot be based on an employer's subjective evaluation or, except
in cases of most apparent nature, merely on medical reports. See Selix
v. United States Postal Service, EEOC Appeal No. 01970153 (March 16,
2000). Rather, it must be based on an individualized assessment of the
individual that takes into account: (1) the duration of the risk; (2)
the nature and severity of the potential harm; (3) the likelihood that
the potential harm will occur; and (4) the imminence of the potential
harm. 29 C.F.R. � 1630.2(r).
Secondary to complainant's request for an accommodation, the agency's
medical officer (MO) conducted an individual assessment of complainant's
medical limitations. MO concluded that as a result of complainant's
visual impairment she is unable to fully appreciate the hazards presented
by automobile traffic, irregular walking surfaces, moving machinery or
sports events involving contact or thrown objects.
We find no violation of the Rehabilitation Act when the agency required
complainant to be accompanied on the field trip by another adult,
because the individualized assessment adequately established that
complainant's visual impairment otherwise posed direct threat to the
safety of the children in her care while on the off-campus field trip
at issue. The complainant does not challenge the agency's suggestion
that the field trip could involve leading children up and down medieval
town halls, walking over uneven cobblestone pavements and winding their
way through narrow streets. We have considered the severity of the
potential harm when young children, who may be unable to appreciate the
gravity of their actions, are not precisely monitored in an exciting,
potentially dangerous and unfamiliar place. The agency did not err in
giving dispositive consideration to the severity of the potential harm
to the children in the off-campus field trip.
In contrast, the agency violated the Rehabilitation Act when over
complainant's objection it assigned a teacher's aide to ensure the
safety of children while in the classroom. We find that the previously
mentioned individualized assessment failed to establish any risk of harm
to complainant or her students while in the classroom. The record reveals
that complainant worked at the school for ten years continuously without
incident. Only after complainant requested other accommodations did the
agency act to place an aide in her classroom. Rather than relying on a
specific and individualized assessment of complainant's impairment the
agency appears to have relied on generalized and stereotypical notions
about the capabilities of a �legally blind� teacher. Statements from
other teachers at the school attest to complainant's ability to perform
her job without jeopardizing her safety or the safety of the students in
her care. In contrast to the substantial risks involved in the off-campus
field trip, the school classroom presented a considerably lower risk of
harm in part because school classrooms are designed for children and the
potential physical hazards posed by the field trip were not present.
In addition, numerous other adults are readily available to render
assistance to the children in the event of an emergency. We find that
the agency has not demonstrated that complainant's unaided supervision
of students in the classroom posed a direct threat.
Our finding of disability discrimination concerns the assignment over
complainant's objection of a teachers' aide ostensibly to ensure the
safety of the children while in her classroom. While the record
reveals that complainant subsequently agreed to accept an aide in
her classroom to assist with reading student's writing, this does not
affect our finding that the agency incorrectly determined, without an
individualized assessment, that complainant required an aide in the
classroom at all times because she posed a direct threat to her students
while in the classroom.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's
FAD with respect to the assignment over her objection of a teacher's
aide to ensure the safety of the children in her classroom.
ORDER
The agency is ORDERED to take the following remedial action:
1. Consistent with the foregoing decision, the agency shall not assign
an aide to complainant's classroom for safety reasons without first
conducting an individualized assessment that establishes that there is
a significant risk of substantial harm if complainant performs her job
without the assistance of an aide.
2. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
3. The agency will provide eight (8) hours of EEO training within the
next four months, with an emphasis on The Rehabilitation Act for
all officials involved.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commissions'
Decision. " The report shall include supporting documentation of the
agency's calculation of back pay and
other benefits due appellant, including evidence that the corrective
action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at Alconbury Elementary School (AES)
in England 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 26, 2001
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The Alconbury Elementary School in England (hereinafter referred to
as the �facility�) supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The facility has been found to have discriminated against an employee
because of her disability. The facility has been ordered to ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment laws. The facility has been ordered to provide compensatory
damages, attorney's fees and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141 The principal made the inquiry in response to a
complaint from a parent about the fitness of a blind teacher.
2 Complainant requested and the agency assigned her equipment designed
to accommodate her vision impairment. Specifically, the agency provided
the Kurtz-Weil Personal Reader, a lap-top computer with outSPOKEN� speech
access software, ancillary headphones and other computer software.
3 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.