The Monica Stugelmeyer Case

The Monica Stugelmeyer Case

The Monica Stugelmeyer
Case,The United States Senator, and
The Equal Employment Opportunity Commission

by Marc Maurer

Monica Stugelmeyer has been a member

of the National Federation of the Blind for more than fifteen years. She has held a number

of jobs and is presently employed in the mailroom at the Spokesman Review

newspaper. She might not have known about her rights as a blind person, but she joined the

National Federation of the Blind, and she has learned that she should be treated with

fairness. When her employer denied her a promotion because she is blind, she came to the

Federation to find out how to protect herself. A complaint has been filed with the Equal

Employment Opportunity Commission (EEOC). The agency investigated and found good cause to

believe that discrimination had occurred. But the Spokesman Review would not even

consider the proposition that treating a blind employee differently from any other is a

violation of the law.

Because the newspaper refused
to discuss the matter, the case has been filed in federal court. I asked Scott
LaBarre to represent Monica Stugelmeyer. Apparently our advocacy on her behalf
made a real difference. Witherspoon, Kelley, Davenport, and Toole, the law firm
representing the Spokesman Review, decided to try to avoid the judicial
system and to bully the EEOC. It wrote a letter to Senator Slade Gorton complaining
that the Federation had been behind the case, and it said that the EEOC had
succumbed to undue pressure. However, the EEOC is not to be easily cowed. It
responded to Senator Gorton with the facts and said it expected to win the case
in federal court. The Spokesman Review asked Senator Gorton to peddle
a little Washington influence, but the ploy backfired. Here is the relevant
correspondence. First is the letter from the newspaper's law firm to Senator
Gorton.

Spokane, Washington
January 18, 1999

Catherine O'Connell
Office of U.S. Senator Slade Gorton
Spokane, Washington
RE: Cowles Publishing/EEOC

Dear Ms. O'Connell:

This letter summarizes the situation

I described to you on the phone last week involving Cowles Publishing and the suit brought

against it by the EEOC for disability discrimination.

In April, 1996, the Spokesman-Review/Cowles

Publishing hired Monica Stugelmeyer to work as a trucker/inserter in the company's

mailroom. The mailroom packages advertising inserts in daily and weekend papers. Ms.

Stugelmeyer is legally blind, but she did not notify Cowles of that fact when she was

hired, nor did she ask for any accommodation to her vision impairment.

After several weeks and though she

was barely adequate at performing some of her duties, Ms. Stugelmeyer was, as all mailroom

employees were then, given the opportunity to work on the inserting equipment. There was

an hourly pay differential of $1 per hour more for working on the inserter, which all the

employees wanted. After several hours other employees came to the mailroom supervisor

complaining that Ms. Stugelmeyer could not keep up with the other employees and that it

was unsafe for other employees to be working with her because she could not see the

equipment controls or mechanical parts well enough to act quickly if necessary. She was

taken off the inserter and assigned to other tasks in the mailroom. She continued to work

as many shifts as she had before working on the inserting equipment, and the company tried

to find extra shifts for her to make up for the pay differential.

Ms. Stugelmeyer complained to

management and to the Mailers' Union that in not working on the inserter she was being

discriminated against because she is blind. The union declined to pursue a grievance filed

by Ms. Stugelmeyer. The management, after consultation with the company's insurer, [the]

Department of Labor and Industries, and the inserting equipment manufacturer about the

unsafe nature of the equipment, reaffirmed the initial decision to remove Ms. Stugelmeyer

from inserting duties. The union concurred.

Ms. Stugelmeyer enlisted the

assistance of an attorney for the Washington Federation [of] the Blind, the state branch

of the National Federation [of] the Blind. With the attorney's input, Ms. Stugelmeyer

filed a complaint with the EEOC, which concluded, in large part, we believe based on the

Federation for the Blind's pressure, that Cowles had discriminated against Ms. Stugelmeyer

in not putting her on the inserting equipment, despite the input from a number of sources

about safety concerns. The attorney for the Federation for the Blind refused Cowles'

invitation to come and see the mailroom and the inserting equipment.

Cowles attempted to conciliate with

the EEOC, offering to permit Ms. Stugelmeyer to train and be evaluated on new inserting

equipment that was installed in late 1997. The new equipment has many safety features

lacking on the old equipment, and management believed it was possible to give Ms.

Stugelmeyer an opportunity to train on it without unduly threatening her or her fellow

employees.

The EEOC initially agreed to such

training but then, without discussing the matter with Cowles again, unilaterally decided,

midway through the agreed-upon training period, that Ms. Stugelmeyer was completely

qualified to work on the equipment and therefore entitled to a full-time job. The EEOC

also demanded for Ms. Stugelmeyer back pay from 1996 and punitive damages for Cowles'

allegedly "egregious" conduct in not permitting Ms. Stugelmeyer to insert. When

Cowles objected to the EEOC's bad faith in reneging on the training and evaluation

arrangement, the EEOC brought suit against the company. The National Federation for the

Blind now seeks to represent Ms. Stugelmeyer and intervene on her behalf in the lawsuit,

though the Federation has, thus far, refused to explain to Cowles why the EEOC is not

adequately representing Ms. Stugelmeyer's interests. Despite the unwillingness of the EEOC

to participate in a final determination as to Ms. Stugelmeyer's qualifications, Cowles has

determined she is qualified to work part-time as an inserter, although she is not

sufficiently skilled and proficient to work in one of fifteen full-time positions, all of

which are currently filled. She is currently working one or two shifts per week as a

part-time inserter. She is also assigned shifts as a trucker.

Far from having discriminated or

acted in bad faith, Cowles has an exemplary reputation for efforts to employ a diverse

workforce, including disabled people. Further, in 1991 the Spokesman Review/Spokane

Chronicle was presented with the Goodwill Industries of the Inland Northwest Employer

of the Year award for employment of people with disabilities. Aside from acting in bad

faith in its negotiations with the company, the EEOC appears to have succumbed to

political pressure from an advocacy organization that has an axe to grind with employers.

This should not be the motivation for a government agency supported by the taxpayers and

supposedly acting for the good of the public.

We appreciate your interest in this

situation and your efforts to assist. Please do not hesitate to call if you have

questions. I have included a more detailed summary of the facts in the case for further

background.

Sincerely yours,

Duane M. Swinton

Witherspoon, Kelley, Davenport & Toole

There you have the letter written by

the law firm to Senator Gorton. Mr. Gorton responded by making an inquiry to the EEOC.

Here is his letter:

Washington, D.C.

January 28, 1999

Equal Employment Opportunity

Commission

Congressional Liaison

Dear Congressional Liaison:

I am writing on behalf of the Spokesman

Review/Cowles Publishing in Spokane, Washington. The Spokesman Review is the

premier regional newspaper and has become involved with an EEOC suit for disability

discrimination. The Spokesman and Cowles Publishing are concerned with this suit

and feel that they have not discriminated against their employee. I am referring this

inquiry to you for your consideration and response.

Please provide the necessary

information in duplicate to the attention of Catherine O'Connell in my Spokane office.

In advance, thank you for your

prompt attention to this matter.

Sincerely,

Slade Gorton, United States Senator

That was Senator Gorton's inquiry,

and no federal agency would ignore such a missive. This is what the EEOC wrote in reply:

Seattle, Washington

February 17, 1999

The Honorable Slade Gorton

United States Senator

Spokane, Washington

Dear Senator Gorton:

This is in response to your January

28, 1999, inquiry on behalf of Cowles Publishing concerning a lawsuit we recently filed

against the organization.

The lawsuit is the result of a

charge of employment discrimination filed by Ms. Monica Stugelmeyer, a resident of

Spokane, Washington, and an employee of Cowles Publishing's Spokesman Review

newspaper, alleging discrimination based on disability. Ms. Stugelmeyer is legally blind;

her vision is 20/200 and has been since birth. Her charge stems from the Spokesman

Review's refusal to allow her to work in a higher-paying position with the company.

Ms. Stugelmeyer works for the Spokesman

Review as a trucker/inserter. The positions of trucker and inserter are separate, but

are performed by the same group of employees. Inserters load stacks of newspaper inserts,

such as the advertisements, onto an inserting machine which separates the inserts and

drops them into slots containing the newspapers. Truckers stack and sort completed packets

of newspapers and prepare them for loading onto trucks. Inserters receive a $1.50 per hour

higher wage than truckers. Truckers are assigned to rotate into the higher-paying inserter

position. The company's job description states that the company will endeavor to allow

truckers to have equal opportunities to perform the inserter job.

The company assigned Ms. Stugelmeyer

to work on the inserter machine for the first time in May, 1996. She reported having no

difficulty while working on the machine for approximately two hours. Without explanation

the Spokesman Review never assigned Ms. Stugelmeyer to work as an inserter again.

When Ms. Stugelmeyer approached her supervisor to express her interest in continuing to

work as an inserter, she was told that her vision was too poor. This was the first time

her vision had become an issue on the job. Ms. Stugelmeyer responded that she believed she

was capable of performing the job, but the supervisor refused to reassign her to the

inserter position again. The Spokesman Review claims that managers and co-workers

were and are critical of Ms. Stugelmeyer's job performance; however, our investigation did

not support such claims. No objective evidence of deficient job performance has been

produced.

As you know, when Congress enacted

the Americans with Disabilities Act in 1990, it sought to eliminate the prejudice and

other barriers which prevent qualified individuals with disabilities from fully

participating in our society as they deserve. The law contemplates that a person with a

disability will be evaluated on the basis of his or her individual capabilities, and not

on the basis of society's biases or an employer's preconceptions.

Because Ms. Stugelmeyer believed she

was capable of performing the higher-paying, inserter job duties, she sought help from her

rehabilitation counselor and arrangements were made to consult the Washington State

Department of Services for the Blind. The state agency offered the services of Mr. Bronson

Goo, a machine shop instructor who has twenty-five years of experience in training blind

and visually impaired people to operate complex machinery.

In August, 1996, arrangements were

made for Mr. Goo to travel from Seattle to Spokane to visit Ms. Stugelmeyer's workstation,

at no cost to the Spokesman Review. Mr. Goo wanted to view the inserting machine

operation and observe Ms. Stugelmeyer at work to determine whether she was qualified to

operate the machine, with or without reasonable accommodation. The Spokesman Review

refused to allow Mr. Goo to observe Ms. Stugelmeyer at work on the machine,

notwithstanding the fact that Mr. Goo had the necessary expertise to determine whether Ms.

Stugelmeyer could effectively operate the inserter. Mr. Goo did, however, observe other

employees operating the machine. Based on his observations and experience, Mr. Goo

concluded that Ms. Stugelmeyer could be trained to work safely on the inserting machine.

The Spokesman Review, however, refused to consider Mr. Goo's assessment. Instead,

the company made the decision to deny Ms. Stugelmeyer the right to work as an inserter and

refused to consider any objective information about how to accommodate Ms. Stugelmeyer in

this position.

After we issued our decision that

there is reasonable cause to believe that the Spokesman Review had violated the

Americans with Disabilities Act, we invited the company to engage in efforts to conciliate

a resolution of the matter short of litigation. This process began in March, 1998. At no

expense to the Spokesman Review, we again arranged for Mr. Goo to make a second

trip from Seattle to Spokane. This time he was permitted to work with Ms. Stugelmeyer on

the inserter machine. He subsequently reported that Ms. Stugelmeyer is capable of working

as an inserter, and, indeed, she has continued to work in that capacity to this date.

Our reasonable settlement proposal

to the Spokesman Review included a request for damages and injunctive relief, such

as training for staff on relevant disability issues. Unfortunately, although requested, we

have never received a specific counter-proposal from the company. We believe that, among

other things, training is required to remedy the discrimination which has occurred. We are

particularly troubled by the hostile attitudes displayed toward Ms. Stugelmeyer in this

case. For example, counsel made the remark that Ms. Stugelmeyer "seems to be the only

one" who does not believe she is disabled.

We regret the Spokesman Review's

purported dissatisfaction with our handling of the charge to date. While the company may

disagree with our assessment of the case and is free to present its own arguments during

litigation, it is clear that our actions in processing Ms. Stugelmeyer's charge to date

have been proper and consistent with the relevant evidence and our statutory mandate. It

is not uncommon for the parties to a charge of employment discrimination to assert strong

views that their versions of the facts support their respective positions. Still,

notwithstanding their views and any pressure they seek to apply, our final determinations

must comport with our own independent interpretations of the evidence and the laws we

enforce. We firmly believe that the Spokesman Review has subjected Ms. Stugelmeyer

to egregious, unlawful discrimination based on her disability, and we expect to prevail in

the litigation we have initiated. We also know that Ms. Stugelmeyer is entitled to present

her own case in court and to be represented by a pro bono attorney, to the extent she

seeks further relief for which we cannot provide representation.

Thank you for your expression of

interest in the case. We hope this information is helpful to you.

Sincerely,

Jeanette M. Leino, District Director

U.S. Equal Employment Opportunity Commission

That's what the EEOC wrote, and one

could hardly ask for a clearer response to a Senate enquiry. The final piece of

correspondence in this series is my letter to Senator Gorton. Here it is:

March 9, 1999

The Honorable Slade Gorton

United States Senator

Spokane, Washington

Dear Senator Gorton:

I have received an exchange of

correspondence regarding the Monica Stugelmeyer case, consisting of a letter from Mr.

Duane Swinton of the law firm Witherspoon, Kelley, Davenport and Toole addressed to your

office; a transmittal letter from your office to the Equal Employment Opportunity

Commission (EEOC); and a response from the EEOC to you (copies enclosed). Mr. Swinton

offers the National Federation of the Blind quite a compliment. In his letter dated

January 18, 1999, he says that the National Federation of the Blind has the power to

determine what cases the EEOC will pursue. Although I serve as the President of the

Federation, I was unaware that the organization was in a position to decide for the EEOC

what it would do. Mr. Swinton apparently believes that the only way to defeat the

Federation in its support of the claim brought by Monica Stugelmeyer is to seek

intervention from a prominent member of the Senate.

I met Monica Stugelmeyer in the

1980's. She is not a radical, militant hell-raiser. She is a blind woman trying to get

along in life. She joined the National Federation of the Blind so that she could share

experiences with other blind people and learn what she could. She is part of the American

workforce that helps to make this country what it is. All she asks is an equal opportunity

to earn her daily bread. We in the National Federation of the Blind are trying to help her

get it.

I do object to the characterization

in Mr. Swinton's letter of the National Federation of the Blind. He says we have an axe to

grind against employers. Apparently Mr. Swinton doesn't know of the decades of work we

have done to find competent blind employees who are prepared to serve employers in every

aspect of the business community. I could think of names for the carelessness demonstrated

in Mr. Swinton's letter, but I will refrain from the name-calling he has used in his

letter.

Senator Gorton, we in the National

Federation of the Blind have great respect for you. Consequently, if you want further

information about the activities of the Federation, we would be only too happy to supply

it.

Sincerely,

Marc Maurer, President
NATIONAL FEDERATION OF THE BLIND