Braille Monitor                                                                  June 1985

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The Moynihan Case
What Happens When the Office of Civil Rights Engages in Discrimination

The federal government is legendary for its complicated maze of bureaucracy. As everyone knows, there are interlocking departments, divisions, bureaus, sections, and branches. And despite all of the rhetoric to the contrary, the complexity increases year by year. In 1980 the Department of Health, Education, and Welfare subdivided and became two separate entities--the Department of Health and Human Services, and the Department of Education. Originally there had been one Office of Civil Rights for the Department. Now, of course, there were two.

All of this is by way of introducing the case of Jim Moynihan, a blind federal employee. He started work for the federal government in the mid-1970s. Toward the end of the decade he decided to apply for the position of management intern. He had been an education program specialist in the Bureau of Education for the Handicapped. Now, he became part of the Office of Civil Rights. Which Office of Civil Rights? Well, there was only one at the time he entered as a management intern, and when the split came, he went with the Department of Education.

As the final phase of his training for upward mobility, he was assigned to the Kansas City regional office, where (he had been assured) his permanent managerial position would be located. But something went wrong. Was it Moynihan's blindness? Was it discrimination and prejudice on the part of the very officials who were charged with the duty of preventing such things from happening? Was it the fact that Moynihan was a Federationist, a member of the organization which fights for equal treatment and first-class citizenship for the blind? Alternatively, was it a failure by Moynihan to do his work and earn his pay? Whatever it was, the trouble began almost from the time Moynihan arrived in the regional office.

To round out the picture, we must introduce Jesse High, the regional director of the Office of Civil Rights in Kansas City. From the day Moynihan arrived, High seemed to have a hostile attitude. As one probes for an explanation, certain facts may be worth mentioning. Jesse High was originally employed in Iowa, where he had worked closely with Nolden Gentry. Federationists will remember Gentry as a member of the board of the Iowa Commission for the Blind during the late seventies and early eighties. That Commission board was flagrantly repressive and anti-civil rights for the blind. Quite naturally it particularly resented the Federation, which resisted its custodialism and refused to bow and scrape.

But back to Jesse High. He came to Kansas City in the early 1970s and was made regional director of the federal Office of Civil Rights in 1979. He had every reason to know that Jim Moynihan was a member of the National Federation of the Blind, and (because of the Gentry connection) he might well have resented not only the Federation itself but the blind as a class.

Be this as it may, Jim Moynihan felt compelled to file an official grievance against High in January of 1981. Matters were further complicated by the fact that Sharon Duffy (then a blind employee of the Iowa Commission for the Blind) filed a civil rights complaint against the Iowa Commission in October of 1981; and Moynihan was assigned the task of investigating. It is a matter of record that a federal rehabilitation official in Kansas City went to Jesse High and complained about Moynihan's assignment to the case, allegedly exclaiming that Moynihan was a "son-of a-bitching Federationist." The time sequence would, of course, make all of this irrelevant to the filing of the Moynihan complaint early in the year, but it may well have aggravated matters.

The investigation of Moynihan's complaint dragged on through the years (as federal procedures are wont to do), but it is now finished; and the decision has been rendered. In all probability the decision in the Moynihan case will not be widely hailed as a landmark case of precedent-setting value, but its significance for the blind is noteworthy and refreshing. Jesse High may be a federal official at the managerial level, but he has been clearly reminded that he is not above the law. Employees of the Office of Civil Rights are not free to behave in an arbitrary manner and to practice the very discrimination which they are pledged to eradicate. The way to survive and advance in federal employment is not necessarily to cringe and submit to injustice but to stand for principle and take the road of integrity. Moynihan will receive his promotion, and he will also receive retroactive back pay for the salary he would have got had he received fair treatment. The lesson of the Moynihan case is one which government officials should ponder. It is also one which the blind should ponder and from which they should profit.

On February 5, 1985, Earl G. Ingram (Director, Equal Employment Opportunity Staff, Department of Education, Washington, D.C.) sent a letter to Jesse High. With the letter he sent his "Proposed Disposition" in the case. On March 27, 1985, the "Proposed Disposition" became the final settlement of the case. It is doubtful that Mr. High's heart was gladdened by the outcome:

United States
Department of Education
Washington, D.C.

February 5, 1985
ED-9-81
CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Subject: Complaint of Discrimination Filed by James M. Moynihan

Dear Mr. High:

You were named as an Alleged Discriminating Official (ADO) in an EEO complaint filed by the above individual. In accordance with the provisions of FPM Letter 713-42, you are entitled to be advised of the status of any EEO complaint wherein you are identified as an ADO.

Enclosed is a copy of the Department of Education's Proposed Disposition of the complaint, which is self-explanatory. You are reminded that this document is for your personal information only, and that Privacy Act restrictions against improper disclosure are binding on all Federal employees.

Sincerely,

Earl G. Ingram
Director, Equal Employment Opportunity
Staff

United States
Department of Education
Equal Employment Opportunity Proposed Disposition

In The Matter Of
James M. Moynihan
ED-9-81

In the Matter of:
James M. Moynihan
(ED-9-81)

Type of Case: Handicapped (Blind), and Retaliation

Introduction

On January 24, 1981, James M. Moynihan, (hereinafter Complainant) Equal Opportunity Specialist (EOS), GS-11, U.S. Department of Education, Post secondary Education Division, Office for Civil Rights (OCR), Region VII, Kansas City, Missouri, filed a formal complaint alleging handicap (blind) discrimination. The Complainant alleged that because of his handicap: he was denied a within-grade increase; he received a negative performance evaluation; he was harassed in the performance of his duties and subjected to more stringent criticism of his work than other employees; and the terms of the Management Intern Program Agreement had been violated.

On March 3, 1981, the Complainant filed a retaliation charge because he was denied both an extension as a Management Intern and a permanent position in OCR.

The Complainant contacted an Equal Employment Opportunity (EEO) Counselor on December 8, 1980. EEO Counseling did not result in resolution of the problems. In his formal complaint of discrimination the Complainant named the following individuals in the U.S. Department of Education, OCR, Region VII, as Alleged Discriminating Officials (ADOs): Mr. Jesse L. High (physical handicap--none), Program Manager, GM345-15, Regional Director; Ms. Judith E. Banks (physical handicap--none), Supervisory EOS, GS-360-14, Director, Elementary and Secondary Education Division (ESED); and Mr. John Nett (physical handicap--none), Program Analysis Office, GM-345-13, Program Review and Management Support Division (PRMS).

The Complainant requested as remedy to his EEO complaint: a promotion to a GS345-12 Program Analyst position in the PRMS Division with back pay retroactive to the date of the complaint; a job description for a GS-345-12 position; a statement from Ms. Banks and Mr. High that they will treat blind and other handicapped employees in a nondiscriminatory manner in the future; removal of the October 7, 1980 memorandum of admonishment from his personnel file; removal of the negative evaluation of his performance by Ms. Banks, and replacing it with a positive evaluation by Mr. Nett; and a retroactive quality step increase for outstanding performance while he was under Ms. Banks' supervision.

The Complaint was investigated August 15-30, 1982 and September 1-4, 1982. An informal adjustment meeting was held on April 26, 1983, but was unsuccessful.

The issues accepted for investigation were whether or not the following alleged actions occurred because of the Complainant's physical handicap (blindness): (1) denial of a within-grade increase; (2) receiving a negative performance evaluation; (3) harassment and stringent criticism of the Complainant's work; (4) violation of the Management Intern Agreement by not providing the Complainant with a written position description and job performance standards, as well as meaningful training and/or work assignments.

Additionally, the following issue was also accepted for investigation: whether or not denial of an extension of employment as a Management Intern or placement in a permanent position was retaliation against the Complainant for having filed an EEO complaint.

Summary of Facts

The Complainant, Administrative Assistant, GS-301-11, was hired on May 20, 1980 as a Management Intern in OCR, Region VII. The former Department of Health, Education and Welfare's (DHEW) Management Intern Program was a three year program designed to produce broadly-trained managers with a Department-wide perspective. The program was also considered an essential part of the Department's effort to recruit, develop and retain highly qualified personnel to meet long-range staffing needs in the Principal Operating Components and in the Office of the Secretary. (Exhibit 12)

The Complainant and two other interns, who have since been promoted, were a part of a mass functional transfer to the Department of Education effective May 4, 1980.

Prior to being transferred to OCR, Region VII, the Complainant had completed three rotational assignments, as Budget Analyst, GS-7, Bureau of Hearings and Appeals, Arlington, Virginia; Management Analyst, GS-9, OCR, DHEW, Washington, D.C.; and Management Intern, GS-11, Public Health Service, Clinical Centers, Office of the Director, Office of Clinical Arts, Bethesda, Maryland. The Complainant's final nine-month rotational assignment was in OCR, Region VII.

The vacancy announcement for the Management Intern Program (Exhibit 11) stated that after completion of three rotational assignments, the incumbent would spend a final nine months in a target position selected from any of the following areas: Budget, Personnel, a program, or general administration. The nine-month assignment would lead to permanent placement in a two-grade interval position properly classified with the occupational group listed in the announcement. The announcement also stated that successful completion of the program qualified the Intern for a permanent position at the GS-12 level. During the final assignment, the Complainant, in accordance with DHEW's Management Intern Training Agreement of January 1979 should have completed a minimum of two formal courses designed to provide an in-depth knowledge of the target area.

Mr. Jesse High stated that he was contacted by Ms. Michelle Craig, Management Analyst, OCR, Headquarters, via telephone about considering an intern from the Management Intern Training Program in order to accommodate his completion of the requirements. "At the time, Mr. Moynihan was in his third rotational assignment of the program and needed to spend nine (9) months in a target assignment in order to complete his requirements." Mr. High informed Ms. Craig that there were no slots available in OCR, Region VII. He was then referred to Ms. Dolores Reeves, DHEW Management Intern Program, Office of the Secretary, who said, if accepted, Mr. Moynihan would be sent to OCR, Region VII and would perform a series of assignments in OCR in order to complete his program requirements. After the end of one year, if Mr. Moynihan's employment was acceptable, a permanent slot would be given to OCR, Region VII for Mr. Moynihan. (Exhibit 42)

On March 26, 1980, a memorandum (Exhibit 13) from Mr. High to Ms. Reeves outlined the terms of employment of Mr. Moynihan. The memorandum contained seven conditions:

(1) the Complainant would be assigned to the Program Review and Management Support Division (PRMS) on a full-time temporary basis, not to exceed March 15, 1981;

(2) the Management Intern Office would be responsible for preparing the Complainant's travel order and for providing other travel arrangements for the transfer to Region VII;

(3) after the Complainant's completion of the Management Intern Program on January 15, 1981, OCR Region VII would place the Complainant in an administrative position at a GS-11 grade level, if a vacant position existed at the time, or request an additional slot from Headquarters to employ the Complainant in a full-time, permanent administrative position;

(4) the Complainant would be expected to work as a GS-11 for a period of one year in a full-time permanent position prior to promotion to a GS-12;

(5) the office could not guarantee which new Department the Complainant would be assigned to pending the split in DHEW;

(6) during his employment with the office, the Complainant would be provided a Reader on a part-time basis not to exceed 32 hours per week; and

(7) the Office of the Secretary (OS), OCR, PRMS Division would assist the Complainant in completing his travel voucher. (Exhibit 13)

Attached to the March 26, 1980 memorandum was a Supervisor Data Sheet.

This form stated the name of the Management Intern's supervisor and had a distinct description of duties which primarily consisted of the Management Intern assisting the Division Director in PRMS. Signatures of Mr. Nett, as supervisor and Mr. High, as authorizing official for funding, were affixed to the document.

A standard Form (SF) 50 (Exhibit 14) shows the effective date of the Complainant's reassignment to Region VII as May 20, 1980. However, an almost illegible handwritten note on the bottom of the SF-50 reads: "Per telephone conversation 5/2/80 w. [with] Tom Graham, Jim was mass transferred to OE [which became the Department of Education] as 5/4/80 -- OE [ Department of Education] ceiling but M.I. [ Management Intern]--due to p.d. [position description] SF-50 to be mailed to Dolores." Also noted on the SF-50 was the statement, "Transfer in interest of the Department and not primarily for convenience of employee. Government agreement signed."

Ms. Patricia L. Boyd, EOS Post secondary Education (PSE) Division, OCR, Region VII (Exhibit 45) (physical handicap--none) stated that from the period of January 13, 1980 to May 11, 1980 she intermittently acted in the PRMS Director position. On several occasions while in the acting capacity she was contacted by Headquarters regarding Mr. Moynihan's transfer to Region VII. She also recalled, on one occasion, after all the arrangements were made, that the Complainant 's wife (then his fiancee) called to tell her everything had fallen through and that the Complainant was not coming. Ms. Boyd contacted Ms. Cynthia Meyers, Special Assistant to the Regional Administrator, several times regarding this matter. Ms. Meyers assured her the matter had been taken care of and the Complainant would be in Kansas City within thirty days. Mr. High also mentioned in his affidavit (Exhibit 42) that the Complainant was planning to marry an OCR, Region VII employee.

The Complainant states that he was assigned to the Office for Civil Rights, Region VII, DHEW effective April 20, 1980 per a signed agreement. Ms. Boyd (Exhibit 45) stated that on the day the Complainant arrived in the office, she was acting for Mr. Nett. She was excited to see the Complainant because of all the problems they had in getting him to Kansas City and she got up from her desk to greet him. As she went to the door, she met Mr. High and Ms. Meyers who were standing by the coffee machine watching the Complainant come in the door. Ms. Boyd contends that Mr. High looked at the Complainant, and she recalled him stating, "What is he doing here? What are we going to do with him?" Ms. Boyd said she was shocked by Mr. High's statement, shook her finger at him and said, "No, No," as if she was scolding a child. Ms. Boyd also stated that neither Mr. High nor Ms. Meyers knew where the Complainant was going to sit because no arrangements had been made. A temporary location was found for the Complainant; however, the space was not adequate to accommodate the Complainant's guide dog.

The Complainant was assigned, per his training agreement (Exhibit 13) to Mr. Nett, in PRMS. While under Mr. Nett's supervision the Complainant stated that he did not receive any work assignments after requesting work on several occasions. His training agreement described his duties which were not implemented. Mr. Nett (Exhibit 44) stated, "Mr. Moynihan worked with several employees in the PRMS Division. Mr. Moynihan worked with Ms. Vickie Patchin (physical handicap--none), then a GS-7, Program Analyst on intake functions concerning complaints of discrimination. I gave Mr. Moynihan work assignments, but it has been so long ago I cannot recall the specific assignments given to him. As best I can recall, there was no position description prepared for Mr. Moynihan because he was still working as a Management Intern. Nothing in writing was provided to me." The Complainant remained under the supervision of Mr. Nett until July 24, 1980, when he was assigned to the ESE Division under Ms. Judith E. Banks, Supervisory EOS, GM360-14, Director ESE Division. The decision to reassign the Complainant, according to Mr. Nett, was made by Mr. High.

The Complainant (Exhibit 8) stated he was approached by Ms. Banks who stated he was going to work for her. The Complainant also stated that Ms. Banks then told him what kind of supervisor she was. She said, "I am known to be very tough, but fair. I believe in three (3) things--accuracy; timeliness; and no bull shit. If you don't know something, tell me that you don't know."

The Complainant approached Mr. Nett regarding his reassignment and inquired if the reassignment was permanent. The Complainant contends that Mr. Nett replied that it was his understanding that the reassignment was a detail for approximately ninety (90) days, after which he would return to the PRMS Division. Mr. Nett allegedly also stated to the Complainant that the purpose of the detail was to give him a broader understanding of the ESE Division and how it functioned.

A memorandum (Exhibit 34) dated June 23, 1980 to Jessie High from John Nett regarding "Assignments for Jim Moynihan" indicated that there was a discussion regarding the Complainant's assignment for the following six-month period. Mr. Nett stated that some possible assignments were: having the Complainant work with Jim Nowell to run a study on the time sheets; to have him involved with the Quality Assurance plan; and to consider placing the Complainant in Judi Banks ' Division for three months to gain program knowledge which would give him an overall picture of OCR procedures and a better understanding of PRMS procedures for future assignment in PRMS. Mr. Nett also stated that he did not know if it would be feasible to have the Complainant working in the budget area at that time although he had a good background in budget. The Complainant at that time was working with Vickie Patchin on intake functions.

The Complainant stated that he was given a tremendous amount of work from Ms. Banks. The problem he had with Ms. Banks was that any error or change was magnified into something serious. "Ms. Banks was insensitive and had no understanding of how blind or other handicapped people work." (Exhibit 8)

The Complainant noted, "An example of Ms. Banks' insensitivity to the handicapped occurred on August 17, 1980 when Ms. Banks, myself and some other employees were scheduled to attend a workshop in Jefferson City, Missouri. Ms. Banks drove her car and offered a ride to me and two or three others. Ms. Banks offered to pick me up but told me that my guide dog could not get into her car. Ms. Banks said her car was very clean."

Ms. Banks (Exhibit 43) stated regarding this incident, that transportation to the workshop was discussed during a meeting. "Initially, we discussed going by train, I changed my mind and decided to go by car, since my father availed his car to me. There were five (5) of us going, six including Mr. Moynihan's reader, who decided she would go by bus. I offered all five (5) employees a ride. I asked Mr. Moynihan did he want a ride, and he replied yes. I told Mr. Moynihan that I was driving my father's car, not mine, and could not take Mr. Moynihan's guide dog in my father's car. My father did not allow his own dog in his car. There would have been five (5) people and a guide dog in one ear, traveling all the way from Kansas City to Jefferson, Missouri in August with temperatures above 90 degrees. I told Mr. Moynihan that if he wanted to take his guide dog along, he would have to take the train or another mode of transportation. Mr. Moynihan responded that it was not a problem and he would use his cane, and have the reader assist him in getting around when we arrived in Jefferson. I had no obligation to take anyone. My invitation was extended everybody."

While under the supervision of Ms. Banks, the Complainant had a variety of assignments which included the bi-weekly activity report, responding to a control slip about a federal job fair, and responding to Freedom of Information requests. The Complainant was given instructions for completing these assignments. On October 7, 1980, Ms. Banks prepared a memorandum of admonishment to the Complainant. The memorandum of admonishment was placed into the Complainant's official personnel file with the condition that if his performance improved the letter would be removed. Ms. Banks listed four areas in which the Complainant was deficient: (1) the preparation of a memorandum under the Freedom of Information Act (FOIA) being forwarded to Jane Glickman, Bilingual Education Specialist; (2) the untimely and incomplete response to a control slip which was due on September 9, 1980 on the federal job fair. In this instance, her written instructions were not followed with regard to responding. The information was not submitted until September 18. He failed to notify the appropriate Division Director of the delay. He stated that he had not paid attention to the date on the control slip; (3) failure to timely complete and/or advise of delays on a due date given for a response to an FOIA request on Section 504 letters of Findings (LOFs) issued in this Division since 1978; and (4) incomplete and inappropriate preparation of the biweekly activities report. (Exhibit 17)

In rebuttal to Ms. Banks' statements regarding his performance, the Complainant said he was having problems with his reader, Ms. Diane Becker, who was not able to handle the responsibilities. The Complainant said Ms. Becker was a very good straight reader; however, she was not able to assist with research information and to scan materials. In addition she had a poor attendance record.

Ms. Hartie L. Thomas (Exhibit 46) (physical handicap--none), GS-305-05, Reading Assistant, Branch II, Post secondary Education, OCR, Region VII characterized Ms. Becker as a "...lousy, incompetent reader. Ms. Becker used to talk to Mr. Moynihan in a nasty tone. She was abrasive and curt. Ms. Becker would not work, when she did not want to be bothered. She would stay away from her desk until she wanted to associate with Mr. Moynihan. Frequently, Ms. Becker would not report to work, and when she did, it was late.... In my opinion, Ms. Becker's attitude and poor attendance had an adverse effect on Mr. Moynihan's performance."

On October 15, 1980, the Complainant requested that Ms. Becker be replaced because he felt that her performance was unsatisfactory and was adversely affecting his ability to complete assignments in an accurate and timely manner. Ms. Becker was terminated on October 31, 1980.

Regarding the Freedom of Information Act request for Section 504 LOFs the Complainant stated he tried to reach Ms. Banks to inform her of the delay he anticipated in completing the assignment, but a combination of Ms. Banks being in Denver, Colorado for one week, and his absence due to unexpected surgery precluded him from doing so.

Regarding the bi-weekly activity report, the Complainant stated that the content was correct but Ms. Banks was not pleased with the format he used in preparation of the report. In late October, 1980, the Complainant stated he was informed by Ms. Banks of the exact format she wanted in the preparation of the bi-weekly activity report.

On December 13, 1980, Ms. Banks via memorandum notified Mr. Charles Gaul, Employee Relations Specialist, Office of Personnel, Region VII, that the memorandum of admonishment should be removed. As of December 17, 1980, the Complainant via memorandum was informed by Mr. High of his intent to deny his within-grade increase. On January 12, 1981, Ms. Banks notified the Complainant that she had removed the memorandum of admonishment based upon the improvement of the Complainant's work performance. The letter was copied to Mr. High and Mr. Gaul. On January 26, 1981, Ms. Banks, in another memorandum, notified the Complainant she was recommending his within-grade increase which was to be effective January 25, 1981.

Analysis and Findings

In order for the Complainant to prevail, the evidence of record must at least initially establish a prima facie case of discrimination. Texas Department of Community Affairs VV. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. VV. Green, 411 U.S. 792 (1973). If a prima facie case is established, the burden shifts to the Agency to articulate a legitimate nondiscriminatory reason for the challenged action. Burdine at 253-4; McDonnell Douglas at 802. The Complainant must show that the reason articulated by the Agency is a mere pretext for discrimination. Burdine at 256; McDonnell Douglas at 804. As noted by the Court, the factual circumstances vary in discrimination cases, and there are differences in the prima facie case applicable to differing factual situations. The ultimate burden of persuading the trier of fact that the Agency discriminated against the Complainant remains at all times with the Complainant.

In the instant case the Complainant must show that he is a member of a protected class; that he was treated differently in the processing of his within-grade increase in the manner in which he was reviewed for his performance evaluation, and in the execution of the negotiated clause contained in his Management Intern Agreement; and that other similarly situated employees were treated differently with respect to within-grade increases, performance evaluations and Management Intern Agreements.

To establish a prima facie case of retaliation, it must be shown: that the Complainant has either engaged in opposition to Title VII discrimination or participated in a Title VII proceeding in which the agency had actual or imputed knowledge of the opposition or participation; that the Complainant received adverse treatment from the agency contemporaneous with or subsequent to the opposition or participation; and that there is evidence of a causal connection between the protected activity and the alleged retaliatory act. Hochstadt VV. Worcester Foundation for Experimental Biology, Inc, 545 F.2d 222 (1st Cir. 1976), 13 FEP 804.

The burden shifts to the employer to articulate a nondiscriminatory reason for the challenged actions. In the instant case, several of the challenged actions were corrected subsequent to the filing of the formal complaint of discrimination. The alleged actions as indicated in the file are a denial of a within-grade increase; receipt of a negative performance evaluation; being harassed in the performance of his duties; being subjected to more stringent criticism of his work than other employees; and, violation of the terms of the Management Intern Program Agreement.

Ms. Judith Banks admonished the Complainant regarding his performance; however, his within-grade increase became effective on his earliest eligibility date. With respect to his performance evaluation and the circumstances surrounding his receiving a poor performance, the investigative file exhibits a December 13, 1980 memorandum from Ms. Banks, the Complainant's supervisor, which instructed that the memorandum of admonishment be removed from the Complainant's Official Personnel File (OPF). This memorandum was copied to Mr. High and Mr. Gaul, Employee Relations Specialist in Personnel. Ms. Banks' December 13, 1980 memorandum, stating that the Complainant's performance had improved, would certainly negate any previous poor evaluations and the apparent basis on which Mr. High inappropriately denied the within-grade increase.

The allegation regarding being subjected to more stringent criticism than other employees is not clearly addressed in the file. However, it can be assumed that the alleged criticism related to the performance of the Complainant. Therefore the earlier conclusion arrived at applies, because the Complainant did eventually receive a favorable evaluation. The final allegation regarding the violation of the Management Intern Program Agreement must be examined closely to make an objective determination. The specific allegations are related to the Complainant not being provided a written position description and job performance standards, as well as not being provided training or work assignments.

The reason Mr. Nett gives for the Complainant not having a position description was because he (Nett) had received nothing in writing. Management's reasons for not permitting the Complainant to perform the duties outlined in his agreement are not specifically addressed. A memorandum dated June 23, 1980 indicates that Management at that time was considering what type of duties the Complainant would perform for the upcoming six months. It was subsequently decided that the Complainant would work under the supervision of Ms. Judith Banks. The June 23, 1980 memorandum also alludes to the Complainant returning to PRMS. To reiterate, it stated, "We could consider having Jim first work a three month assignment in Judi's division to gain program knowledge. He might then have a better overall picture of OCR procedures and better understand PRMS procedures when he starts his assignment in PRMS." (Exhibit 34)

The investigative file and personnel data clearly refute what management has presented as a legitimate nondiscriminatory reason. The file exhibits a memorandum which outlines the terms of the Complainant's assignment in OCR, Region VII. The Supervisor Data Sheet incorporates a description of the assignments of the Complainant. The document was signed by Mr. High and Mr. Nett, who in his (Nett) sworn statement said that the Complainant did not have a position description. Therefore it is reasonable to conclude that the duties existed but the Complainant was not given the opportunity to perform them.

An analysis of the investigative file reveals that the Office for Civil Rights, Region VII, did not assist the Complainant in his development as a potential manager. The Supervisor Data Sheet did not indicate a title for his position; however, once the Complainant was on-board he was given the title of Administrative Assistant. In the previous positions held while in the Management Intern Program the Complainant had the titles and grades of Budget Analyst, GS-7; Management Analyst, GS-9; and Management Intern, GS-11. These positions were in double progressive classification series (i.e. 7, 8, 9, 10, 11). Since the Complainant was previously assigned to a position in the double progressive classification series he should have remained in a classification series with double progression.

Further, the duties outlined on the Supervisor Data Sheet do not correlate with the title of Administrative Assistant. The Complainant, a GS-11, at one time worked with a GS-7 Program Analyst on intake functions rather than performing the developmental duties stated within the agreement. Clearly, the Complainant, a Management Intern, could not obtain the required level of program on-the-job training and necessary experience to advance as a potential manager from a GS-7 employee who was several grade levels below him. Such an action indicates that OCR, Region VII, was not sincere in executing the mandate of the Management Intern Program.

The affidavits of several persons who testified allude to the Complainant's transfer to OCR, Region VII, as being one of convenience as well as in the interest of the Department. The point of convenience is raised because the Complainant's wife, then his fiancee, was located in the Kansas City area and they were planning to be married. The allusion is negated by the statement on the Complainant's SF 50 which stated, "Transfer in interest of the Department and not primarily for the convenience of the employee. Government agreement signed." Even though the Complainant was given an assignment in the Region of his choice, the honoring of his request did not exempt OCR from the agreed upon terms outlined in the Management Intern Agreement.

Mr. High indicated in his affidavit that he had no available slot for the Complainant. The Management Intern Agreement stated that once the Complainant became permanent, Headquarters would give OCR, Region VII, a slot specifically for the Complainant. The file does not mention if Region VII received the slot, nor does it mention if a slot became available once the Complainant became permanent. If the slot was received or if a slot became available, Region VII Management was still obligated by the agreement to place the Complainant in the target position of Program Analyst which was located in PRMS.

Two other non-handicapped interns were mass transferred to the Department of Education in May 1980. One former intern, who was in the Complainant's class, is presently a Management Analyst, GS-345-12, and has been a GS-12 since January 11, 1981. The other former 1976 intern is presently a Program Analyst, GS-345-12, effective February 6, 1983. (This information was retrieved from the computer terminal's PAYPERS system.)

Although Management corrected several allegations through the action of Ms. Banks rescinding the memorandum of admonishment and making a positive statement regarding the Complainant's performance, it failed to proceed without discrimination in the manner in which it treated the Complainant in the Management Intern Program which would have given a handicapped employee the opportunity to perform work assignments which could have assisted him to possibly advance to the managerial level.

The legislative history of the Rehabilitation Act of 1973 and its 1978 amendments show that Congress expected and fully intended the Federal government to be a model employer of the handicapped, taking affirmative action to hire and promote the disabled. S. Rep. No. 93-318, 93d Cong., 2d Sess. at 49 (1973). See also, 29 C.F.R. Section 1613.703. By the 1978 amendments to the Act, Congress made it clear that nondiscrimination against the handicapped was an "obligation" on the part of the Federal government, not a "gratuity." Shirley VV. Devine, 670 F.2d 118, 27 F.E.P. Cases 1148, 1154 (D.C. Cir. 1982).

On the issues presented in the above case the Complainant must prevail because the reasons presented for the alleged acts were a pretext for discrimination.

Remedy

The Complainant will be retroactively promoted as of March 15, 1982 into a GS345-12 Program Analyst position in the Office of Civil Rights, Program Review and Management Support Division (PRMS), Region VII, Kansas City, Missouri, and will be given a classified position description to sustain the title and grade in accordance with the March 26, 1980 Management Intern Agreement signed by Management Officials.

Notice of Further Rights

Right of Hearing

If you are dissatisfied with the proposed disposition, you may request a hearing and decision by the Department if you notify the Director, Equal Employment Opportunity Staff, in writing within 15 calendar days of receipt of this notice that a hearing is desired. The address is: U.S. Department of Education, Room 2117, FOB-6, 400 Maryland Avenue, S.W., Washington, D.C. 20202.

Right of Decision Without A Hearing

If you are dissatisfied with the proposed disposition, you may also request a decision without a hearing from the Department. To request a decision without a hearing, you must notify the Deputy Under Secretary for Management in writing within 15 calendar days of receipt of this notice. The address is: U.S. Department of Education, Room 3181, FOB-6, 400 Maryland Avenue, S.W., Washington, D.C. 202 02.

Adoption of Proposed Disposition As Decision

If you fail to notify the Director, Equal Employment Opportunity Staff, of your wishes within the 15-day period, the Director, Equal Employment Opportunity Staff, may adopt the proposed disposition of the complaint as the Department's final decision; but you will be notified in writing that the proposed disposition has in fact been adopted as the Department's final decision and of any further rights of appeal.

Earl E. Ingram, Director
Equal Employment Opportunity Staff
February 5, 1985

United States
Department of Education
Washington, D.C.

March 27, 1985

CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Dear Mr. Moynihan:

Transmitted herewith is the U.S. Department of Education's Final Agency Decision on your complaint of discrimination file on January 24, 1981. Please note the Appeal Rights incorporated in the Final Agency Decision.

Sincerely,

Earl G. Ingram
Director, Equal Employment Opportunity Staff

United States
Department of Education Washington, D.C.

Final Agency Decision

In the Matter of:

James M. Moynihan

Type of Case:

Handicap (Blind)

James M. Moynihan, Complainant, Equal Employment Opportunity Specialist (EOS), U.S. Department of Education, Office for Civil Rights (OCR); Postsecondary Education Division, Region VII, Kansas City, Missouri filed a formal complaint alleging handicap (blind) discrimination.

The Complainant alleged that because of his handicap: he was denied a within grade increase; he received a negative performance evaluation; he was harassed in the performance of his duties and subjected to more stringent criticism of his work than other employees; and the terms of the Management Intern Program Agreement had been violated.

On February 5, 1985 a Proposed Disposition was issued by Director, Equal Employment Opportunity Staff, U.S. Department of Education which found discrimination. On March 4, 1985 the Complainant notified the Department of his acceptance of the Proposed Disposition.

In accordance with 1613.217 (c) the Proposed Disposition is hereby adopted as the Final Agency Decision.

Right of Appeal to EEOC

If you are dissatisfied with the Department's decision, you may file a Notice of Appeal, with the Equal Employment Opportunity Commission, Attention: Director, Office of Review and Appeals, 2401 E Street, N.W., Washington, D.C. 20506; in accordance with 29 CFR Part 1613, Section 233, which states:

(a) Except as provided in paragraph (c) of this section, a complainant may file a notice of appeal at any time up to 20 calendar days after receipt of the agency's notice of final decision on his or her complaint. An appeal shall be deemed filed on the date it is postmarked, or in the absence of the postmark, on the date it is received by the Commission. Any statement or brief in support of the appeal must be submitted to the Commission and to the defendant agency within 30 calendar days of filing the Notice of Appeal. For purposes of this Part, the decision of any agency shall be final only when the agency makes a determination on all of the issues in the complaint, including whether or not to award attorney's fees or costs. If a decision to award attorney's fees or costs is made, the decision will not be final until the procedure is followed for determining the amount of the award as set forth in 1613.271(c).

(c) The 20-day time limit within which a notice of appeal must be filed will not be extended by the Commission unless, based upon a written statement by the Complainant showing that he or she was not notified of the prescribed time limit and was not otherwise aware of it or that circumstances beyond his or her control prevented the filing of a Notice of Appeal within the prescribed time limit, the Commission exercises its discretion to extend the time limit and accept the Appeal.

Right of Appeal to U.S. District Court

In the alternative, you may file a civil action for relief in an appropriate U.S. District Court within 30 calendar days after you receive the Department's decision. You may also file your civil action if the Department has not issued its final decision by 180 calendar days after the date of your formal complaint was filed.

If you choose to file a civil action, and you do not have, or are unable to obtain the services of a lawyer, you may also request the court to appoint a lawyer to represent you. In such circumstances as the court deems just, the court may appoint a lawyer for you and may authorize the commencement of the action without the payment of fees, costs or security. Any such request must be made within the above-referenced 30-day time limit and in such form and manner as the court may require.

If you appeal to the Equal Employment Opportunity Commission, your right to judicial relief will be preserved. You may file a civil action in an appropriate U.S. District Court within 30 days after you receive the Commission's decision; or, if the Commission has not issued a decision, 180 calendar days after it accepted your request for appeal.

Earl G. Ingram, Director
Equal Employment Opportunity Staff
March 27, 1985