01A01247
06-26-2001
Betty Jo Kelly, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Betty Jo Kelly v. Department of Commerce
01A01247
June 26, 2001
.
Betty Jo Kelly,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A01247
Agency No. 99-62-00648
DECISION
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant claims that she was discriminated against on the bases
of her age (D.O.B. March 18, 1947) and disability (carpal tunnel
syndrome/arthritis) when on February 22, 1999, as part of the interview
process for the position of Production Assistant with the National
Technical Information Service, complainant and the other applicants
for the position were required to complete expired Standard Form 177,
Statement of Physical Disability for Light Duty Work.
Any employee, regardless of whether he or she is an individual with
a disability under the Rehabilitation Act, has a right to challenge
a disability-related inquiry or medical examination that is not
job-related and not consistent with business necessity. See EEOC
Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act,
EEOC Notice No. 915.002 (July 26, 2000). EEOC Regulation 29 C.F.R. �
1630.13(a) provides that an agency may not make pre-employment inquiries
as to whether an applicant is an individual with a disability or as to
the nature or severity of such disability. See Nolan v. Department
of the Army, EEOC Appeal No. 01975113 (Nov. 1, 2000); see also ADA
Enforcement Guidance: Preemployment Disability-Related Questions and
Medical Examinations, EEOC Notice Number 915.002 (October 10, 1995).
An agency may make pre-employment inquiries into the ability of the
applicant to perform job-related functions, pursuant to 29 C.F.R. �
1630.14(a); however, this inquiry must be narrowly tailored, meaning that
an employer may describe or demonstrate the job function and inquire
whether or not the applicant can perform that function with or without
a reasonable accommodation. See DeReyna, et al. v. Department of the
Navy, EEOC Appeal Nos. 01980077, 01980078, 01980079 (Jan. 19, 2001).
An employer may not use an application form that lists a number of
potentially disabling impairments and ask the applicant to check any of
the impairments he or she may have. See Appendix to 29 C.F.R. Part 1630 -
Interpretive Guidance on Title I of the Americans with Disabilities Act,
� 1630.14.
It is a per se violation of the regulations implementing Section 501
of the Rehabilitation Act to make improper pre-employment inquiries.
See Nolan, supra. The fact that no candidate had been selected to the
open position prior to the date complainant's complaint was filed in
the instant case, has no bearing on whether complainant stated a claim
of discrimination.
The Commission finds that complainant states a claim of discrimination
under the Rehabilitation Act. The agency's decision dismissing
complainant's complaint for failure to state a claim is REVERSED.
The complaint is REMANDED for further processing in accordance with the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 26, 2001
__________________
Date