01A03486
04-04-2002
Terry S. Metzenbaum, Complainant, v. John D. Ashcroft, Attorney General, Department of Justice, Agency.
Terry S. Metzenbaum v. Department of Justice
01A03486
April 4, 2002
.
Terry S. Metzenbaum,
Complainant,
v.
John D. Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A03486
Agency No. 187-7-189
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that he was
discriminated against based on disability (learning disability) and in
reprisal for prior EEO activity (requests for accommodation and filing of
EEO complaints pursuant to the Rehabilitation Act) when: (1) the agency
did not exempt complainant from the written pre-employment exam for a
Deputy United States Marshal (DUSM) position; and (2) he was not hired
without a written examination by Schedule A appointment.
The record reveals that complainant is a private investigator and
part-time police officer, and has a bachelor's degree in criminology
from the University of Albuquerque as well as prior employment experience
as a probation officer. According to the record evidence, in 1985, the
Child Study Facility of the University of Illinois at Chicago diagnosed
complainant with a "significant learning disability," including "severe
deficits in the area of both auditory and visual attentions," a reduced
capacity for language, and a "concrete use of imagination." See Record
of Investigation (ROI) at Exhibit A2.
In 1986, complainant contacted the United States Marshals Service
(USMS) Selective Placement Program Manager seeking a DUSM position as
a "Schedule A" direct appointment, for which no competition or exam
was required. Complainant contends that he was instructed to obtain a
receipt of eligibility from a State Vocational Rehabilitation Agency.
Complainant subsequently obtained this certificate, see ROI at 31, which
was sent to the Selective Placement Program Manager. The certificate
states that complainant's learning disability affects his "word attack
skills, verbal perception, and syllabication." Id.; see also ROI at
Exhibit F1 (complainant's affidavit). The certificate further states
that it is recommended as a job modification that complainant use a
dictating machine for reports. Complainant alleges he never received
a reply from the agency after the certificate was submitted in 1986.
Complainant subsequently took the DUSM exam a number of times. After
repeatedly not passing the exam, he filed an EEO complaint in 1992
contending he was discriminated against based on disability when he was
not selected for a DUSM position in 1986. The complaint was dismissed
by the agency as untimely filed. See Metzenbaum v. Department of
Justice, EEOC Appeal No. 01932319 (July 6, 1993) (remand for supplemental
investigation regarding timeliness issue); Metzenbaum v. Department of
Justice, EEOC Appeal No. 01940123 (December 21, 1993) (affirming dismissal
following supplemental investigation), request for reconsideration denied,
EEOC Request No. 05940384 (July 15, 1994).
Subsequently, complainant requested an unspecified disability
accommodation in taking the exam. He was granted a waiver of the
exam time limit as an accommodation. In his affidavit, complainant
contends that he passed the exam, was placed on a selection roster,
but was never selected prior to a change in the application procedure
and implementation of a new exam. Complainant further alleges that when
he subsequently took the new exam, he did not pass, primarily because
he did not do well on the math portion. See ROI at 29. The agency,
however, contends that complainant did not pass the exam at any time,
even with the accommodation of waiving the time limit. See ROI at 38.
The agency notes that complainant also previously applied for the same
position through a one-time merit promotion announcement, which did not
entail an exam, but complainant did not qualify for the certificate of
eligibility on that occasion.
Believing the agency engaged in discrimination and retaliation,
complainant sought EEO counseling and subsequently filed a formal
complaint on April 29, 1995, raising the claims identified above.
Specifically, complainant contends that rather than merely waiving
the time limits, the agency should have waived the written exam in
its entirety, or alternatively, he should have received a Schedule A
appointment, thus relieving him of the need to pass the exam.
The investigation revealed that the agency has no records of any of
complainant's applications. The Chief, Field Staffing Branch, USMS,
states that the agency discards after ninety days the records of all
candidates who fail the exam, and moreover, had only retained a copy
of the vacancy announcement for the most recent opening for which
complainant applied. She further asserts that while her office did
inform complainant in 1986 that in order to apply for a Schedule A
appointment under the Selective Placement Program he had to obtain a
certification of disability from the appropriate state agency, this "was
not meant to imply that he could be hired under Schedule A." ROI at 38.
She also asserts that all Deputy U.S. Marshals have been hired either
under the Competitive OPM exam or under Merit Staffing Announcements,
not under Schedule A.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, but subsequently withdrew his request,
and the Administrative Judge returned the matter to the agency for
issuance of a FAD.
With respect to the threshold issue of whether complainant is an
"individual with a disability" under the Rehabilitation Act, the FAD
concluded that the record evidence was insufficient to demonstrate that
his learning disability substantially limited him in the major life
activity of learning. However, the FAD found that it could be inferred
that he was "regarded as" having a substantially limiting impairment,
because the agency had granted his request for accommodation by waiving
the written exam time limit.
The FAD further found that the DUSM exam was "adequately and objectively
linked to actual performance of essential functions of the Deputy's
job," and therefore elimination of the exam was "not reasonable."<2>
Specifically, the FAD noted that according to USMS, the Deputy position
requirements include reading comprehension, mathematical reasoning,
judgment, decision-making, and attention to detail, and these are also
the qualifications the written exam is designed to test. Moreover,
the FAD noted that the Office of Personnel Management (OPM) found the
exam was designed to test cognitive abilities vital to the performance
of a Deputy's duties. An OPM validation study of the exam found that
scores on the exam have a significant mathematical correlation with
the training criteria, in that the composite score for the validity
of the three test parts was .71 for predicting job training success.
In addition, the FAD further concluded that the agency had met its burden
to accommodate complainant by waiving the time limit on the exam.
On appeal, complainant contends: (1) he has a learning disability as
defined by statute; (2) although he was able to graduate from college,
his learning disability greatly impeded his performance; (3) his
"syllabication and word attack skills" caused him to be terminated
from his prior position as a Criminal Investigator at the Immigration
and Naturalization Service because he could not satisfy the Spanish
proficiency requirement; (4) he passed a prior version of the DUSM
exam which did not contain a math section; (5) the Office of Personnel
Management "downgraded" him at the request of the agency so that he would
not have to be hired; (6) his learning disability results in difficulty
doing math, which caused him not to pass the DUSM exam here at issue
as well as the LSAT and other examinations; (7) he did not meet the
training requirements for the DUSM position when he applied through the
alternative merit promotion announcement; and (8) the agency opposes his
appointment because his learning disability and IQ have been misclassified
as "psychological disorders" and the DUSM position involves carrying
a firearm. The agency has not submitted any contentions on appeal.
In analyzing this case, we do not reach the issue of whether or not the
FAD correctly concluded that complainant does not possess a substantially
limiting impairment but is nevertheless an "individual with a disability"
because he was "regarded" as having such an impairment. Nor do we reach
the issue of whether or not the FAD otherwise correctly analyzed the
complaint. Rather, we find that even assuming arguendo complainant's
learning disability is an impairment which does substantially limit him
in the major life activity of learning such that he is an "individual with
a disability," complainant has not established disability discrimination.
Complainant contends that the agency should have waived the math portion
of the exam, or the entire exam. If the eligibility requirement
of obtaining a requisite minimum score on the exam is analyzed as a
qualification standard pursuant to 29 C.F.R. � 1630.10, complainant
has not satisfied the threshold requirement to demonstrate that the
qualification standard of achieving a minimum score on the exam screened
him out based on his disability. Where an individual with a disability
does establish that such a qualification standard screens him out, the
agency is required to demonstrate that the qualification standard is
supported by business necessity. "Job criteria that even unintentionally
screen out, or tend to screen out, an individual with a disability
. . . because of their disability may not be used unless the employer
demonstrates that that criteria, as used by the employer, are job-related
to the position . . . and are consistent with business necessity."
29 C.F.R. pt. 1630 app. � 1630.10. On the facts of this particular case,
however, the evidence of complainant's learning disability is insufficient
to satisfy his initial evidentiary burden to demonstrate that the math
portion of the exam, or the entire exam, tended to screen him out as an
individual with a disability. See 29 C.F.R. � 1630.10. In reaching this
conclusion, we note that the evidence in the record that complainant did
not achieve the minimum required score on the exam, and that he has been
previously diagnosed with a learning disability, is alone insufficient
to demonstrate that he did not achieve the minimum required score on
the examination because of the diagnosed learning disability.
Further, to the extent complainant contends that he was subject to
disparate treatment based on disability or reprisal when the agency failed
to hire him pursuant to a Schedule A appointment, the undisputed evidence
establishes that the agency's use of such appointments is not mandatory,
and complainant has not met his burden to establish by a preponderance
of the evidence that the agency's proffered reason for its action was
a pretext for discriminatory or retaliatory motive.
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
April 4, 2002
__________________
Date
1The 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.
2We note that in analyzing "reasonable accommodation," the FAD erroneously
construed the term "reasonable" to refer to whether it is reasonable to
require the employer to provide the type of accommodation at issue.
Rather, "[a] modification or adjustment satisfies the reasonable
accommodation obligation if it is 'effective.'" EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (March 1, 1999) at "Introduction."