01A30010
02-11-2004
Eric S. Edwards v. Department of Veterans Affairs
01A30010
02-11-04
.
Eric S. Edwards,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30010
Agency No. 2003-1391
Hearing No. 310-A1-5175X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged discrimination on the basis of sex (male) when he
was not selected for the position of Temporary File Clerk, GTS-0305-4,
advertised under Vacancy Announcement No. 2000-180-WA; and on the bases
of race (Black), age, and disabilities (related to a bad back, flat feet,
and bad leg) when he was not selected for the position of Temporary File
Clerk, GTS-0305-4, advertised under Vacancy Announcement No. 2000-249-WA.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of either race or age discrimination based on the fact that 4 of the 6
selectees were over the age of 40, and 2 of the selectees were over the
age of 50; moreover, 2 of the selectees were African-American. However,
viewing both vacancies together, the AJ found a prima facie case of sex
discrimination. The AJ also found that complainant established a prima
facie case of disability discrimination inasmuch as one Responsible
Management Official (RMO-1) violated EEOC Regulation 29 C.F.R. �
1630.13 which prohibits against asking disability-related questions
during the pre-employment stage. These requirements are applicable
to cases brought under Section 501 of the Rehabilitation Act pursuant
to the Rehabilitation Act Amendments of 1992, P.L. 102-569 (October
29, 1992). See Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations, EEOC Notice No. 915.002 (October 10,
1995). In this regard, the AJ noted that complainant did not provide any
evidence that would support a conclusion that he is a qualified individual
with a disability. Although complainant has diabetes for which he
takes medication, complainant testified that he has no medical problems
related to his diabetes when he takes his medication as prescribed.
Complainant has no limitations with respect to lifting, standing,
and walking, as a result of two bad discs in his back. Furthermore,
when asked on direct examination, complainant testified that he did not
at the relevant time, nor does he now consider himself to be disabled.
Notwithstanding, complainant expressed concerned for the question posed to
him by RMO-1 regarding whether complainant could really do the job since
he was �drawing disability� for his back, flat feet, and bad leg. The
AJ found that this question regarding complainant's medical condition
was inappropriate and exceeded the boundaries of the Rehabilitation Act.
Therefore, the AJ concluded that based on RMO-1's question, complainant
was regarded as an individual with a disability under the Act.
Nevertheless, the AJ found the agency articulated legitimate,
non-discriminatory reasons for its actions which complainant failed to
prove was pretext for discrimination. Specifically, RMO-2 stated that
in making her selections, she considered: education, work history,
experience with a numbered filing system, and maintaining reading
materials. RMO-2 stated she did not select complainant because the other
selectees were more impressive in her view. She summarized her selection
process as one that considered an applicant's �entire picture� and not
one item, one group of criterion, was critical. The interviews were a
very important part of the selection process. During the hearing, RMO-2
testified that RMO-1's interview notes about complainant's impairments
were not critical because she accepted complainant's representation that
he could perform the essential functions of the position. Moreover,
all of the applicants selected by RMO-2 were characterized as disabled.
The AJ stated that this factor coupled with her lack of reliance on
RMO-1's notes was evidence that RMO-2 lacked a discriminatory motive
in her selection. The AJ ultimately found RMO-2's testimony credible
inasmuch as her decision not to select complainant was not tainted by
RMO-1's notes concerning complainant's alleged impairments.
The AJ found that although it was clear that RMO-1 violated the
Act's prohibition against asking disability-related questions at the
pre-employment stage, he further found that this violation did not taint
RMO-2's selection as there was no evidence of discriminatory intent.
As such, the AJ found that he had no authority within the administrative
hearing process to make a technical violation finding as to this issue.
The AJ noted for the record that the agency should take all necessary
and appropriate action to ensure that similar violations did not occur
in the future.
Turning to complainant's arguments on appeal, complainant repeats
all the same arguments made in his complaint and at the hearing save
one. To wit, complainant argues that RMO-1 obtained the details of
complainant's impairments from complainant's VA Adjudication file which
is protected under the Privacy Act. Complainant argues that these VA
files are held in trust and are not to be used for personnel actions.
Assuming complainant's argument is true, Privacy Act issues are outside
the purview of EEOC's jurisdiction. However, complainant is correct
that an employer's improper pre-employment questions may constitute
disability discrimination. See Enforcement Guidance, supra.
First, however, we find that the AJ properly determined, and the record
reflects that complainant has failed to prove by a preponderance of
the evidence that the agency discriminated against him with regard to
his non-selection. Assuming arguendo that complainant is an individual
with a disability and established a prima facie case of discrimination,
management proffered legitimate, nondiscriminatory reasons, mainly, that
complainant was not the best qualified candidate for the positions in
question, based on training and experience. We agree with the AJ that
complainant failed to establish pretext.
However, EEOC Regulation 29 C.F.R. � 1630.13 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
a disability. An agency may, however, make a pre-employment inquiry
into whether an applicant can perform any or all job functions.
29 C.F.R. � 1630.14(a). The Commission has held that an employer's
improper pre-employment questions constitute disability discrimination.
See Enforcement Guidance, supra.
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. See Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees under
the Americans with Disabilities Act (July 27, 2000) (July 2000 Guidance);
Enforcement Guidance on the ADA and Psychiatric Disabilities (March 25,
1997) (March 1997 Guidance); and Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations Under the ADA
(October 10, 1995). Because the restrictions on employers with regard
to disability-related inquiries and medical examinations apply to all
employees, and not just to those with disabilities, it is not necessary
to inquire whether the employee is a person with a disability. July 2000
Guidance, p. 3. Instead, we focus on the issue of whether the agency's
question posed to complainant is lawful. See Clark v. United States
Postal Service, EEOC Request No. 01992682 (November 21, 2001).
As the Commission has held that an employer may ask a potential
employee whether he can perform any and all job functions, here, RMO-1's
questions concerning complainant's ability to perform the essential job
functions of a Temporary File Clerk were appropriate. See Enforcement
Guidance, supra. But based on our review of the record, we find that
the question posed to complainant regarding whether he could really do
the job since he was �drawing disability� for his back, flat feet, and
bad leg constituted a prohibited pre-employment inquiry, and thus was
impermissibly disability-related and violated the Rehabilitation Act.
The Commission finds that the above-described inquiry by RMO-1 was
improper and is explicitly prohibited by EEOC Regulation 29 C.F.R.
� 1630.13.
Due to the prohibited pre-employment question, we find that the
agency must correct its pre-employment process to comply with
Commission Regulations. Therefore, we will order the agency to revise
its pre-employment process to eliminate the prohibited inquiries.
See Thompson v. United States Postal Service, EEOC Appeal No. 01951359
(August 7, 1996); see also McKinley v. Department of the Army, EEOC
Appeal No. 01933326 (September 8, 1994); aff'd on reconsideration,
EEOC Request No. 05950027 (December 8, 1995)(finding disability
discrimination by agency officials who made prohibited preemployment
inquiries, but concluding that the complainant would not have been
selected absent the prohibited inquiries, and ordering the agency to
correct its pre-employment process). In addition, as the Commission has
found that an employer's asking of improper pre-employment questions can
cause an actual injury to complainant, we direct the agency to conduct
an investigation regarding the issue of complainant's entitlement to
compensatory damages. See Nolan v. Department of the Army, EEOC Appeal
No. 01975113 (November 1, 2000).
CONCLUSION
Accordingly, based on a review of the record and for the foregoing
reasons, it is the decision of the Commission to AFFIRM the AJ's
finding of no disability discrimination with respect to complainant's
non-selection, but to REVERSE the AJ's finding of no disability
discrimination with respect to complainant being subjected to a
pre-employment inquiry as it relates to disabilities. Also, it is the
decision of the Commission to direct the agency to conduct a supplemental
investigation on the remedy of compensatory damages.
ORDER (D1199)
The agency is ORDERED to take the following remedial actions:
1. The agency shall review its pre-employment process, in particular,
the pre-hire interview questions, and shall revise such pre-employment
procedures as necessary to ensure that the inquires therein comply with
the Rehabilitation Act of 1973, as delineated in the EEOC's implementing
regulations at 29 C.F.R. � 1614.203.
2. The agency shall provide training to RMO-1 for conducting the interview
in this action concerning his responsibilities with respect to eliminating
discrimination in the federal workplace. The training must place a special
emphasis on the agency's obligations under the aforementioned law and
implementing regulations with respect to such pre-employment inquiries.
The Commission does not consider training to be a disciplinary action.
3. The agency shall consider taking disciplinary action against RMO-1
for making the illegal inquiry at issue in this case. The agency shall
report its decision within thirty (30) calendar days. 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.
4. The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
him an opportunity to establish a causal relationship between RMO-1's
prohibited pre-employment question and any pecuniary or non-pecuniary
losses. The complainant shall cooperate in the agency's efforts to compute
the amount of compensatory damages, and shall provide all relevant
information requested by the agency. The agency shall issue a final
decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within sixty (60) calendar days of the date this decision
becomes final. A copy of the final decision must be submitted to the
Compliance Officer, as referenced below.
5. 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 VA Regional Office, Waco, Texas
facility 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.
ATTORNEY'S FEES (H0900)
If complainant 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___02-11-04_______________
Date
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 Section 501 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 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 Department of Veterans Affairs, Waco, Texas 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 Department of Veterans Affairs, Waco, Texas facility was found to
have violated the Rehabilitation Act when a interviewing official made
pre-employment inquiries as to whether an applicant for a position was
an individual with a disability and as to the nature or severity of
the disability. The agency shall therefore remedy the discrimination
by ordering EEO training for all responsible officials and is to
pay proven compensatory damages. The facility 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.
The Department of Veterans Affairs, Waco, Texas 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 1614