01a00387
04-27-2000
Lorena G. Beauchesne, Complainant, v. I. Michael Heyman, Secretary, Smithsonian Institution, Agency.
Lorena G. Beauchesne, )
Complainant, )
)
v. ) Appeal No. 01A00387
) Agency No. 97-18-012497
I. Michael Heyman, ) Hearing No. 100-98-8029X
Secretary, )
Smithsonian Institution, )
Agency. )
________________________________)
DECISION
Complainant filed the instant appeal from the agency's September 27,
1999 decision finding that the agency did not discriminate against
complainant based on complainant's disability (hearing impaired).<1>
The agency accepted the following issue for investigation:
You were subjected to unlawful discrimination based on your [disability]
(hearing impairment) when you were not interviewed for the position of
Writer-Editor (Printed Media), GS-1082-11, under Announcement #96H-1070
which was issued on August 5, 1996 by the Office of Human Resources,
Smithsonian Institution.
After an investigation, complainant requested a hearing before an EEOC
Administrative Judge. An administrative judge issued a decision dated
September 7, 1999 without holding a hearing. The administrative judge
found:
I find that the Agency's brief correctly states the material facts and
applicable legal standards. There are no genuine issues of material fact
or credibility that require resolution at a hearing. [footnote omitted].
Summary judgment in favor of the Agency is therefore appropriate for the
reasons stated in the Agency's brief. [citations omitted]. Accordingly,
I recommend that the Agency issue a finding of no discrimination.
In a footnote the administrative judge found: �Complainant failed to
demonstrate that she was better qualified than the selectee.�
In the agency's September 27, 1999 decision the agency found no
discrimination.
An administrative judge is permitted to issue a decision without a
hearing when he or she determines that there is no genuine issue as to
any material fact. 29 C.F.R. � 1614.109(g)(2). The record shows that
complainant opposed the agency's motion for summary judgment by arguing,
in part, that: �The very act of not interviewing in person the hearing
impaired [complainant] is, under the circumstances, discrimination per
se.� Both parties agree that the selecting official contacted some
candidates, including complainant, by telephone. The telephone contact
with complainant was accomplished via use of a TTY (text telephone)
operator. Both parties agree that the selecting official then narrowed
the list of acceptable candidates and chose several persons for in-person
interviews. The Selectee was chosen from among the in-person interviews.
Complainant is essentially arguing that she was not reasonably
accommodated when she was not granted an in-person interview. Complainant
argues that the TTY �interview�<2> placed her at a
disadvantage compared to non-hearing impaired candidates, because,
among other reasons, the Selecting Official was not able to gauge her
personality. The Commission finds that complainant raised the issue
of whether she was reasonably accommodated prior to the administrative
judge's decision to issue a decision without a hearing. The Commission
finds that the issue of whether complainant was denied a reasonable
accommodation includes genuine issues of material fact for which there
is a dispute. The Commission finds that under these circumstances the
administrative judge improperly issued a decision without holding a
hearing.<3> The Commission shall remand the matter so that complainant
may be provided with a hearing.
Because we find that complainant was improperly denied a hearing, we
shall vacate the agency's finding of no discrimination.
The agency's finding of no discrimination is VACATED and we REMAND the
matter to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within 15 calendar days of the date this decision
becomes final. The agency shall provide written notification to the
Compliance Officer referenced herein that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the administrative judge
shall issue a decision on the complaint in accordance with the regulation
set forth at 64 Fed. Reg. 37,644, 37657 (to be codified as 29 C.F.R. �
1614.109) and the agency shall issue a final action in accordance with
the regulation set forth at 64 Fed. Reg. 37,644, 37657 (to be codified
as 29 C.F.R. � 1614.110).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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:
April 27, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant argues that she was never �interviewed� because her
conversation with the Selecting Official via the TTY operator was
insufficient to constitute an interview. The Commission does not
address in this decision whether the conversation at issue amounted to
an �interview.�
3The Commission does not address whether complainant is entitled to the
reasonable accommodation she seeks.