The Braille Monitor November, 2003
Victory in the Moynihan Case
by James Moynihan
From the Editor: Jim Moynihan is a longtime Federationist and a leader of the NFB of Missouri. For the past four years he has been engaged in a struggle for justice in his job with the Office for Civil Rights in the U.S. Department of Education, of all unlikely places. One would have thought that those working to enforce civil rights would be the first to practice fairness in employment, but apparently this was not the case. Here is the Moynihan story as told by Jim himself:
What happens when a blind federal employee applies for promotion only to encounter discrimination at every turn? This is the account of my struggle to obtain a GS13 position with the Office for Civil Rights, (OCR), U. S. Department of Education. Our regional office is located in Kansas City, Missouri.
OCR's mission is to enforce civil rights statutes such as Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act. As a federal agency OCR is obligated to hire, promote, and provide reasonable accommodations for employees with disabilities.
Angela Marie Bennett became office director on March 17, 1997. Her management style has been characterized by secretiveness and stealth--the less employees know, the better. She announced that anything from zero to four GS13 positions would become available. These promotions rarely come along and are highly prized. They mean more money in the paycheck, and retirement income is based on the salary during the last three years before retirement.
Nobody knew what the criteria for these promotions would be. Would seniority matter? Would work performance count? Management said that nine candidates would be interviewed for the GS13 positions. The interviews would be conducted on January 27 and 28, 1999.
Steve Stratton, the program manager, and the four team leaders--John Nigro, Michael Hamilton, Safiyyah Muhammad, and Jody van Wey--were to conduct the interviews. John Nigro was and still is my team leader and is a paraplegic who uses a wheelchair. Some people have said, and I am sure he would agree with their assessment, that he is the office's guru on disability.
At this time Patricia Boyd (Pat) was the president of American Federation of Government Employees (AFGE) union local 3892. On January 25, 1999, Pat was working flexiplace at home, which allows federal workers to complete approved projects at home. Pat received a telephone call from Kay Schlagle, one of the nine candidates. Kay began asking Pat how she would answer certain questions on Title IX, Title VI, and other civil rights statutes. Pat asked Kay why she was asking her such questions.
Kay told Pat that the interview was going to be based strictly on OCR policies, procedures, and memoranda. Pat had previously been selected for a GS13 position and assured Kay that the interview would be nothing like that. When Kay insisted these were to be the kind of questions on the interview, Pat asked her why she thought this, and she responded that John Nigro had told her so. Though Pat was skeptical of Kay's description of the interview process, she told Kay she had conducted training for equal opportunity assistants and that Kay could find a wealth of materials in Pat's credenza.
That was all Kay needed. She told an attorney on our team that she could not complete an assigned project because she needed three days to study for the oral interview. (Pat did not tell me about this conversation with Kay until after the oral interviews had taken place because she has integrity and because in that way I could truthfully say that I had had no knowledge of the questions to be asked.)
Pat then emailed Angela Bennett that a potential problem had emerged with the oral interview process and requested a meeting with Angela, but Angela ignored her email. The promotion interviews took place on January 27 and 28, 1999, with my interview taking place on the 28th. I was the seventh candidate interviewed.
The interview comprised eighteen questions regarding OCR regulations, policies, and procedures. For example, one question asked about the three-part test used in Title IX athletics cases. This concerns allegations of sex discrimination, usually against female athletes. I happened to know that answer because I had just read something on Title IX athletics. Otherwise I might have known only two out of three parts. Getting this question right, however, had no bearing on the ability of an investigator to process Title IX athletics cases.
I rode home with Pat Boyd after the interview, and she asked me how it had gone. Only after I described the interview, did she reveal that John Nigro had divulged the nature of the questions to Kay Schlagle prior to the interview. I found it incredible that my own team leader would give away the questions on an interview to another member of my team. John Nigro has since steadfastly denied under oath giving information regarding the interview to Kay Schlagle, and Kay has denied under oath receiving information from Mr. Nigro.
Angela Bennett soon received complaints from candidates that the oral-interview process had been tainted. She appointed Steven Stratton, the program manager, to investigate this matter. Steve interviewed only three people and concluded that no clear evidence existed that the oral-interview process had been tainted.
On February 24, 1999, Angela sent an email to the nine candidates saying that we would have a ten-minute interview with her on the 24th and she gave us a schedule of times when the interviews would be conducted. She added that it was not necessary to dress up for the interview. Of course we speculated about what Angela could ask that would take only ten minutes, but we could only wait for the appointed time.
Taking nothing for granted, I selected my best suit and tie. On the morning of February 24 I was sitting in the OCR conference room, watching films on black history. Angela's secretary called me out of the room and said that she had noticed that I had not opened the latest email from Angela. She then told me that a written interview exam would take place at 2:00 p.m. The other eight candidates would take their written exams across the street in the fancy Regional Training Facility.
She said they would be given the choice of handwriting their exams or using a computer. She stressed that the interviews would be anonymous. She would type the exams of the candidates who chose to handwrite their exams so that they would be anonymous. The candidates were not to put their names on their exams. Each one would be assigned a number to ensure anonymity.
During the EEO investigation I asked Angela why the other eight candidates were given the option of either handwriting their exams or typing them on the computer. Everyone in the office had received computer training. Angela explained that some of her staff did not feel comfortable using computers and were allowed to handwrite their exams. I, on the other hand, was not given any alternatives, such as writing my exam in Braille to be transcribed into print. I was simply told to use the computer in my office.
What happened to the ten-minute interview with Angela? She later explained in her EEO testimony that she had hated to use such a ruse but that this was the only way to ensure that the employees would show up for the written exam.
I was shocked and bewildered. Since we had undergone an oral interview, why were we being subjected to a written one? But there was nothing for it but to take the written exam. I was told that Steve Stratton would proctor my exam in my office. Steve explained that I had from 2:00 p.m. to 4:00 p.m. to complete the exam.
It contained six tough questions about OCR regulations, policies, and procedures. Steve read the questions to me, repeated sections of the multiple-part questions where necessary, and remained with me throughout the exam. He assured me that the examinations would be anonymous and that I was not to sign my document.
The exams would be assigned a number. My exam was number 7, since I was the seventh candidate interviewed orally. I felt pressed for time and in my anxiety did not think to ask for extra time as a reasonable accommodation. Slightly before 4:00 p.m. I finished the exam.
Remember that everything I wrote was on the screen, which Steve could observe. I printed out my exam answers. Steve took the pages out of the printer and placed them in an envelope, marking number 7 on it.
Angela was proctoring the exam for the other eight candidates at the training facility. She called to see if I had completed the exam, and Steve said that I was done. According to Angela, the other candidates were panicking, running out of time, but Angela said she told them to stop since I had finished. After all, fair is fair.
When the numbering system for ensuring anonymity was explained to the candidates, one of them, Diana Goold, pointed out to Angela in an email that her system for ensuring anonymity was fatally flawed. For example, if she was the third candidate interviewed on the oral exam, her identity would be disclosed by checking her number on the written exam against the list of oral interview candidates.
Angela thanked Diana for pointing out this problem. In hindsight Diana should have waited until after Angela announced her selectees to disclose this problem.
Angela said later that, while driving north on I29 to work, she noticed the numbers on passing automobiles. She called her secretary with the solution to the anonymity problem. She would assign a license number to each candidate.
Nobody knew how many candidates for the GS13 positions would be selected and what the criteria would be. The suspense ended late Friday, March 13, 1999. With one exception Angela announced the selected candidates by email. They were Jim Weston, Kay Schlagle, Vicki Taylor, Natalie Hauser, and Jeannetta Bogan. Angela told Diana Goold in person that she had not been selected; the others who lost out were Lawrence Lee, Adrienne Payne, and I.
I was shocked, then angry. I was far more competent than several of the selectees, and I resented receiving the information by email rather than in person. We soon noticed that none of the union officials had been chosen. Lawrence Lee was the union vice president, Diana Goold was chief steward, and I was the steward.
I filed an EEO complaint with the Department on July 6, 1999. I contacted President Maurer and explained the situation to him. He agreed that I had been discriminated against and said the Federation would provide financial support. Gary Wunder, Missouri affiliate president and national board member, agreed to be my representative. I owe him a debt of gratitude that I will never be able to repay.
The representative could attend the EEO hearing only as an observer. He could not make statements or participate in the hearing. When warranted, he could call for a break to take me aside to confer. I could only ask questions (what they call interrogatories) of witnesses and could not make statements. I was not used to this format nor accustomed to running my own investigations. On several occasions Gary had to call me out of the room, urging me to follow the format laid out by the EEO investigator.
The way Angela had chosen the five candidates soon became apparent. In her EEO testimony Angela claimed that the selection was based solely on the combined scores of the oral and written interviews. Seniority and work performance meant absolutely nothing. Angela said that she wanted to test the knowledge base of the candidates in making her selections. She probably believed she had created a complaint-proof system of selecting the candidates.
But further analysis revealed that the selections had actually been based on the oral interviews. The oral-interview process had been called into question, with good reason. So the written interview was added so that Angela could say that nobody had had prior knowledge of that exam.
After filing my EEO complaint, I was given the investigative file containing the ratings by the team leaders on the oral interview panel, supposedly an objective exam on OCR policies and procedures. The ratings indicated that the team leaders could not be trusted; it was time to settle old scores. For example, Mr. Nigro, who had given information about the interview questions to Kay Schlagle, ranked her number 1. The other panelists ranked Natalie Hauser number 1.
Safiyyah Muhammad ranked Diana Goold number seven, but the other panelists all ranked her much higher. Safiyyah was black and clearly saw Diana as a white female from a privileged background. Also Diana was on Safiyyah's team and never hesitated to voice her disagreements with him.
I was ranked number seven by Jody van Wey, but higher by the other panelists. John Nigro ranked me five, and Steve Stratton ranked me third. I had worked for years with Jody, and she was not happy having a blind employee. The problem revolved around her relationship with an employee on her team named Joe Monahan. Jody and Joe were married, but not to each other. They both lived in Independence, Missouri, and drove to and from work together. They always went to lunch with each other and did on-site investigations, taking adjoining hotel rooms with a connecting door. They were frequently observed holding hands. My former branch chief chided them for playing footsy in staff meetings. At a party at the regional director's home my wife, who has some sight, observed Jody sitting on Joe's lap.
Years ago there was office talk about not selecting Jody as branch chief. When she called me into her office to ask what was going on, I told her that people were concerned about her relationship with Joe. Jody gave a forced laugh, saying she and Joe were just friends. I did not contradict her.
Splitting the Baby
The EEO investigator wrote a good report on the complaint, but it contained no conclusions. I made a critical mistake by opting for a decision by the Department's general counsel rather than a hearing by the Equal Employment Opportunity Commission (EEOC).
The decision stated that the Department was in violation of Section 504 of the Rehabilitation Act and Title II of the ADA by failing to provide reasonable accommodations for the written portion of the test. A notice of this decision was to be posted on OCR's bulletin board for sixty days and should not be altered or defaced. The OCR managers were required to attend eight hours of disability training.
The problem with the decision was that, even though the Department was in violation of the civil rights statutes it enforces, the Department attorneys ruled that this was not enough to constitute discrimination and that there was no individual remedy. In other words, I would not receive a GS13 position.
The decision also stated that I could appeal this ruling to the EEOC. My elation at finding that the general counsel had found the Department in violation was overshadowed by the knowledge that I would not receive the promotion to which I felt I was entitled. Where was I to go?
For over twenty years I have belonged to AFGE local 3892, and I knew that they maintained a legal services office. I shipped the two thick notebooks constituting my case file to the union's legal services department in Washington, D.C. I had several conversations with a union attorney.
A few weeks later I received a letter from her saying that the union could not help me with my case. She explained that my case affected only one person and was not precedent-setting. She said the union had limited resources and had to make sure its funds were spent effectively.
I began my own search for an attorney and eventually hired Dale Ingram, who developed a ten-page legal brief which EEOC received on May 18, 2001. Ingram explained that the oral interview process had been tainted, as revealed in contradictory testimony from the witnesses who participated in the EEO hearing. He argued that the main problem was the failure of the written interview to ensure my anonymity. He requested that the case be remanded back to the Department for additional investigation.
The most difficult part of such a process is the waiting. EEOC deals with cases alleging discrimination in the area of employment. It had a backlog of 100,000 complaints and a staff of fifty lawyers. Gary Wunder and the Missouri affiliate were just about my only encouragement. Gary put my case on the agenda at board meetings, and meeting after meeting I regularly informed the patient board members and audience that I had no news.
I also sent letters to Senator Carnahan and Senator Bond about my case. Melissa Ortega, staff member in Senator Bond's office, was particularly helpful. She succeeded in advancing my case upward in the mountainous pile of cases to be assigned. On June 26, 2002, she gave me the encouraging news that my case had been assigned to an attorney.
I called, and the attorney of the week told me that they would not give me the name of the attorney to whom my case had been assigned. There were to be no ex parte discussions (talking) between the complainant and the assigned attorney.
I then asked how my case would be decided if I could not talk to the attorney to tell him or her at length about the discrimination on the basis of blindness to which I had been subjected. She explained that the case would be decided on the record, that is, by the evidence contained in the case file.
How long would it take for the assigned attorney to render a decision? There was no telling. It would depend on the schedule of the assigned attorney and the complexity of the case. Moreover, the attorney's decision would have to be reviewed by his or her supervisor before the final decision was signed by the EEOC director.
On August 27, 2002, my lawyer reported that he had received the decision from EEOC and that I had won my case. The EEOC decision provided for the GS13 with back pay and interest and attorneys' fees. The Department had thirty days to appeal EEOC's decision.
I showed this decision to an attorney knowledgeable in civil rights. He could not believe the totality of the decision. I had won on every point.
The EEOC decision said that Bill Dittmeier had used the wrong legal theory, disparate impact, in writing the Department's EEO decision. He should have used the legal theory known as different treatment. Disparate impact refers to groups of people such as minorities, women, or people with disabilities. For example, an investigation might establish that a smaller percentage of minorities than expected had been admitted to law school or, as is often the case, that a higher percentage of minority high school students had been suspended for disciplinary reasons. These bad numbers as we call them are not enough to prove that discrimination has occurred, but they are a good indicator that further investigation is warranted.
On the other hand, different treatment refers to the treatment given to a particular individual. Of the nine applicants I was the only person with a disability who applied for the GS13 position and was not, therefore, part of a group. The question, as Bill Dittmeier should have known, was whether I had been treated differently when rejected for a GS13 position.
The EEOC decision ordered the Department to provide me the GS13 position with back pay and interest. It ordered the Department to post a notice on the Department's bulletin board and leave it there for sixty days and not to alter or deface the notice. The OCR managers were also to take disability training.
EEOC's decision stated that OCR, and in particular Angela Bennett and Steve Stratton, had failed to provide reasonable accommodation regarding the administration of the written exam. OCR had taken elaborate steps to ensure anonymity and assured all nine candidates that their examination answers would be anonymous to prevent bias. But the same person, Steven Stratton, who proctored my exam, also scored it. Such an arrangement clearly did not protect my anonymity since Steve was present throughout the exam, took my exam out of the printer, and sealed it in the envelope.
Response of the Department of Education
Yogi Berra was right again when he said, "It ain't over until it's over." The Department of Education was not giving up. On October 3, 2002, the Department appealed EEOC's decision in its usual confusing way. I telephoned EEOC around October 15 and was told that EEOC had received a cover letter notifying them that the Department wished to appeal its decision and that the appeal would be coming under separate cover. I explained that I had not received a copy of the appeal and contacted the Department's EEO office. The Department's response had been sent to me at 445 East 7th Street by certified letter, which never reached me, because I live on 74th Street.
My attorney hadn't received a copy of the Department's response either. When I contacted EEOC, they told me that my attorney was not listed as my representative. This was puzzling since EEOC had sent him a copy of its favorable August 27 decision. I then telephoned the Department's EEO office to obtain a copy of its response to the EEOC decision. An EEO specialist told me she had better things to do than send me a copy of the response. She explained that this was her last day before she transferred to HUD. She said she was delegating this matter to another specialist.
On October 18 I received a call from an EEO specialist who said that she had faxed a copy to the government union office at work and another copy to my attorney.
The response said that the oral interview counted for 450 points and the written interview constituted 25 points. Thus the written interview counted for only 5 percent of the total points on which the candidates were graded.
They agreed to rectify the problem by giving me a perfect score of 25 points on the exam. With these points added, I would still not have sufficient points to be selected for the GS13 position.
My attorney contacted EEOC and was told that they had not received a copy of the Department's response, so he faxed a copy of the Department's response to them. Now EEOC had the Department of Education's Request for Reconsideration in its hands. I contacted EEOC and was told that the Request for Reconsideration had not been assigned to an attorney because EEOC had 9,000 cases and a staff of fifty attorneys to process them.
I contacted Senator Bond's office requesting the senator's assistance in getting my case assigned to an attorney. I eventually found out that the Request for Reconsideration had been assigned to an attorney. The assigned attorney makes a decision, which is then passed on to a panel of attorneys to review.
If the panel concurs, the decision is then given to the EEOC director for his signoff. If the final EEOC decision is in the complainant's favor, a compliance officer is then assigned to monitor mandatory compliance of the employer with EEOC's order.
We were back in the waiting game. On June 25, 2003, I called EEOC's Office of Federal Operations. I was told that EEOC had reached a decision. Was the decision favorable or unfavorable? I asked. She could not tell me the outcome, but she said the decision was dated June 19, 2003. On June 26 I heard officially from my attorney that I had won the case and eventually received notice of this fact by mail. I would receive the GS13 promotion with back pay, interest, and attorneys' fees. EEOC had sixty days from the June 19 decision date to offer me the GS13.
On July 22, 2003, the Department of Education's EEO office sent a certified letter offering me the GS13 position. The letter did not reach my house until July 28; I responded on the same day, sending an overnight letter accepting the position. The Department of Education's EEO office will compute the amount of back pay and interest to which I am entitled from March 26, 1999, to July 28, 2003, when I accepted the GS13 promotion. After four years of struggle, we finally achieved victory. I am indebted to members of the Federation and to the organization itself for its patience and steadfast support that culminated in success.