APR 9 1998

The Honorable Amo Houghton

Member, U.S. House of Representatives
P.O. Box 908
Jamestown, New York 14702-0908

Dear Congressman Houghton:

This is in response to your letter on behalf of your

constituents, XXX .

The Civil Rights Division has been attempting to resolve our

investigation of the Texas Commission for the Blind as
expeditiously as possible. Since issuing our letter of findings
of violation, we have made several attempts to find a reasonable
means of resolving the remaining issues in this case short of
litigation. We are continuing these efforts; but because our
investigation is ongoing, we cannot comment further at this time.

I hope this information is useful to you in responding to

your constituents.

Sincerely,

Bill Lann Lee

Acting Assistant Attorney General
Civil Rights Division

cc: RECORDS; CHRONO; WODATCH; NAKATA; MCDOWNEY; FOIA

E:/NAKATA/MYFILES/CONGRESS.LET/HOUGHTON2.WPD

Civil Rights Division

Office of the Assistant Attorney General Washington, D.C. 20035

DJ 204-75-8

MAY 8 1997

BY FEDERAL EXPRESS
Pat D. Westbrook
Executive Director
Texas Commission for the Blind
4800 N. Lamar Boulevard
Austin, Texas 78756

Re: Complaint Number 204-75-8

Dear Mr. Westbrook:

This letter constitutes the Department of Justice's Letter

of Findings with respect to allegations of violations of Title II
of the Americans with Disabilities Act of 1990 ("ADA") by the
Texas Commission for the Blind ("TCB" or "Commission"). Title II
of the ADA, 42 U.S.C. SS 12131-12134, prohibits discrimination
against qualified individuals with disabilities on the basis of
their disability by state and local governmental entities, such
as the Commission. The ADA specifically prohibits discrimination
against qualified individuals with disabilities in employment
under any service, program, or activity conducted by a public
entity. 28 C.F.R. S 35.140; 29 C.F.R. S 1630.9; see 29 C.F.R.
pt. 41.

The ADA requires the Commission to make reasonable

accommodations to the known physical and mental limitations of
otherwise qualified employees with disabilities, unless the
Commission can demonstrate that providing the accommodation would
impose an undue hardship on the operation of its program. 23
C.F.R. S 41.53; 29 C.F.R. S 1630.9. As detailed below, our
investigation has revealed that the Commission failed to make
reasonable accommodations to the known disabilities of
individuals and that it maintains a practice of failing to
provide certain employee manuals and information in accessible
formats (e.g. braille or audio tape) appropriate to the needs of
individuals with disabilities and failing to ensure that
necessary adaptive equipment is provided in a timely manner. The
Commission has not claimed that providing the accommodations
would impose an undue hardship, and the evidence would not
support such a claim. Furthermore, we find that at least one
employee has been subjected to harassment, which created a
hostile work environment; and that she was unjustly discharged
from her job. See 23 C.F.R. S 41.52 (C) (9).

Pat D. Westbrook
Texas Commission for the Blind
Page 2

XXX , a former receptionist at TCB's Houston

office, filed a complaint with the Department of Justice alleging
that TCB denied reasonable accommodations for her. The complaint
also alleges that a TCB supervisor verbally harassed Ms. XXX
that TCB managers failed to investigate or take meaningful
corrective actions when allegations of this discrimination were
brought to their attention, and that TCB retaliated against her
for filing a complaint with the Texas Human Rights Commission
("THRC"). In addition, our investigation has identified other
individuals who have also alleged that they were discriminated
against on the basis of their disability by the Commission.

By letter dated October 17, 1995, we notified you of our

investigation pursuant to Title II of the ADA. In that letter,
we informed you of the complaint received by the Department
concerning XXX . That letter requested specific
information concerning Ms. XXX employment at TCB and the
managerial responses to Ms. XXX claims. In December 1995,
TCB provided its response, which was comprised of Ms. XXX
personnel files and previous submissions by TCB in response to
complaints made by Ms. XXX before the THRC.

In January 1996 we requested additional information. On

January 25, 1996, TCB responded to that request by providing a
computer printout of other employees who are blind or who have
impaired vision and have been terminated since January 26, 1992,
and the personnel files for Ms. XXX successor as receptionist
at TCB's Houston office.

On April 5, 1996, we notified TCB that we had identified

other individuals who alleged that they had been discriminated
against by TCB on the basis of their vision impairment or
blindness. This letter requested additional information from
TCB, including documents and TCB's responses to the allegations
raised. On May 3, 1996, TCB provided a lengthy written response,
in addition to substantial documentation. This letter disputed
the allegations of the additional individuals.

By letter of June 26, 1996, we notified TCB of our intent to

issue our Letter of Findings, but provided TCB with the
opportunity to address our preliminary findings concerning
several specific allegations raised by Ms. XXX and Ms. XXX
XXX a former counselor at TCB's San Antonio office. In
particular, that letter identified specific alleged incidents of
harassment by Ms. XXX supervisor targeted towards or based on
Ms. XXX disability. The letter also raised a specific
allegation by XXX , another former counselor at TCB's
San Antonio office. On July 3, 1996, TCB requested additional
time to compile a response to the specific allegations. The
Department granted additional time. Ultimately, on July 15,
1996, TCB provided a detailed response to our June 26 letter. In
that letter, TCB admitted to some of the facts of the alleged
incidents of harassment towards Ms. XXX , but indicated that

Pat D. Westbrook
Texas Commission for the Blind
Page 3

they did not constitute harassment and that they had been
misconstrued. The Commission also responded to other preliminary
findings.

We agreed to meet with representatives from TCB and the

Texas Attorney General's office on October 8, 1996, to discuss an
amicable resolution of this matter. In our letter of October 2,
1996, we provided a detailed outline of our proposed findings and
supporting evidence with respect to XXX
XXX and XXX . We also attached an outline of
our preliminary offer of settlement. As indicated in that
letter, and as stated in our October 8 meeting, we were willing
to amicably settle this matter and avoid the necessity of issuing
a Letter of Findings of a violation. Following our October 8
meeting, TCB provided further information, including a detailed
letter responding to the allegations raised in our letter of
October 2, 1996. We carefully reviewed the information provided
by the Commission and, in April 1997, called regarding the Letter
of Findings under consideration and requested additional
information and again attempted to settle this matter prior to
the issuance of our Letter of Findings. Most recently, the
Commission provided additional information on April 25, 1997. We
carefully considered this information, together with the other
information gathered during our investigation. We again called
regarding the Letter of Findings under consideration and
attempted to settle this matter amicably prior to issuance of our
Letter of Findings. Our attempts at settlement have not been
successful.
 After every request for information, we carefully considered
each additional submission of information by TCB. As outlined
above, TCB provided detailed information on at least six
occasions. In particular, TCB was provided an opportunity to
respond both to specific allegations and to an outline of our
proposed Letter of Findings. We therefore believe that our
investigation fairly considered TCB's position.

As discussed in detail below, the Department finds that the

Commission has violated the ADA by discriminating against
employees on the basis of their disabilities. All procedural
prerequisites to issuing a Letter of Findings have been met.
Accordingly, under 28 C.F.R. S 35.172, we are writing to advise
you of this noncompliance and to inform the Commission that the
Department is prepared to enter into negotiations in order to
secure compliance by voluntary means, as provided in 28 C.F.R.
S 35.173. Please be advised that title II of the ADA permits a
complainant to file a private suit pursuant to section 203 of the
Act. Please also be advised that, if negotiations fail and
voluntary compliance cannot be achieved, the Department is
authorized under the ADA to file suit in the appropriate Court.

Pat D. Westbrook
Texas Commission for the Blind
Page 4

I. ALLEGATIONS AND FACTUAL FINDINGS

A. Summary of Allegations

XXX an individual who is blind, alleges that TCB

denied her reasonable accommodations in connection with her
employment as a receptionist at TCB. Additionally, Ms. XXX
alleges that XXX , her immediate supervisor,
restricted her use of accommodations and verbally harassed her on
the basis of her disability. Ms. XXX also alleges that, when
the discriminatory conduct was brought to the attention of other
managerial employees (including supervisors of Ms. XXX ), no
effective corrective measures were taken. Ms. XXX alleges
that she was eventually terminated or forced to resign because of
the intolerable conditions created by her supervisor. Finally,
Ms. XXX alleges that TCB retaliated against her for filing a
complaint of discrimination with the THRC.1
 In a different regional office of TCB, two other persons who
are blind allege that they were denied reasonable accommodations
during their employment at the Commission. XXX ,a
counselor at TCB's San Antonio office, alleges that she was
denied certain adaptive equipment and that she experienced
substantial delays in receiving other adaptive equipment
necessary for her employment. In addition, she alleges that
important manuals and other documents were either not provided in
an alternate format or were provided only after significant
delays. Finally, she alleges that her supervisor ignored her
repeated requests to change rehabilitation assistants, thereby
preventing her from working effectively. XXX , another
counselor at TCB's San Antonio office, also alleges that he was
------------------------
1The Department makes no finding with respect to Ms. XXX
claim of retaliation. As noted below, the Department finds that
the Commission subjected Ms. XXX to harassment based on her
disability from sometime before November 1991 to her ultimate
termination in June 1992. Although Ms. XXX was terminated
shortly after she filed a complaint with THRC, we have not
determined whether the actions that ultimately resulted in her
termination were taken in response to that complaint.

In her complaint filed with the THRC, Ms. XXX alleged

that she had been given a poor mid-year evaluation (which
included incorrect statements concerning her performance) and
that she was being subjected to "harassment" by her supervisor.
Her complaint with the THRC did not include the specific
incidents of harassment, retaliation, or denial of reasonable
accommodations that formed the basis of her complaint with the
Department. The THRC examined the statements in Ms. XXX mid-year
evaluation and found in favor of the Commission. The THRC
did not make specific findings with respect to the conduct
forming the basis of Ms. XXX complaint with the Department.

Pat D. Westbrook
Texas Commission for the Blind
Page 5

denied reasonable accommodations in his employment at TCB and

that he received poor evaluations in those areas where
accommodations were necessary, but not provided.

In addition, during the course of our investigation and

review of other personnel files provided by the Commission, we
have identified at least six other individuals with vision
impairments who may have been either denied accommodations or
verbally harassed during their employment at TCB.

B. Factual Findings

Based upon information obtained in our investigation, which

included review of documents and tape recordings of conversations
produced by witnesses and the TCB and interviews with the
complainants, witnesses, and TCB officials, the United States
makes the following factual findings.

1. XXX

Ms. XXX began employment at TCB as a receptionist on

XXX . During her employment at TCB, Commission staff
failed to provide materials in an alternate format that she could
use, for example, in braille or on audio tape. Among other
treatment, XXX criticized Ms. XXX for using a
braille machine, a talking clock and a cane. In addition, Ms.
XXX restricted Ms. XXX use of equipment (including a
braille machine) that Ms. XXX needed in order to perform the
functions of her position. On May 28, 1992, according to a tape
recording of a meeting between Ms. XXX and Ms. XXX
Ms. XXX directed Ms. XXX to use her braille machine only
for taking messages for blind staff members. Previously,
Ms. XXX had used her braille machine for functions necessary
for her employment, such as taking notes and keeping records
(e.g. the location and contact information for employees, to-do
lists, itineraries and schedules, etc.); creating permanent
reference materials necessary for her work; and replacing these
reference materials when they wore out. Only after Ms. XXX
was forced to explain to Ms. XXX that braille materials
become worn with use, did Ms. XXX modify this restriction
slightly, by allowing Ms. XXX to use her braille machine also
for replacing worn materials. She did not, however, allow
Ms. XXX to use the machine for taking notes or for any other
purpose. Specifically, in their May 28th meeting, Ms. XXX
and Ms. XXX had the following dialog:

Ms. XXX : Well, what are you brailling?

Ms. XXX : Like things that have to do with my work out

there.
 Ms. XXX : They're not messages. They don't go in the
message area.

Pat D. Westbrook
Texas Commission for the Blind
Page 6

Ms. XXX : XXX are you going to start harassing

me about that?

Ms. XXX : I'm just asking you what you are brailling

Ms. XXX : I just told you. They are not messages. I

just got finished telling you. It's not all
messages. So, maybe my dots wear out and I
need to redo them.

Ms. XXX : Your what wear out?

Ms. XXX : My dots.

Ms. XXX : On the brailler?

Ms. XXX : No, on the papers.

Ms. XXX : XXX , you are going to have to explain what

you mean by your dots. I do not understand.

Ms. XXX : Braille is dots. After a period of time when

you use them for a long time, they press down
and you have to redo them.

Ms. XXX : Oh, so you need new paper?

Ms. XXX : No, you have to redo the whole thing.

Ms. XXX : Why not just get new paper?

Ms. XXX : You do have to have new paper, but you have
to rebraille whatever it is that is worn
down. Whatever paper of braille is worn
down, you have to redo, so that the dots are
fresh.
 Ms. XXX : So, it's safe to say that you are just
redoing dots on your brailler.

Ms. XXX : That's what I am doing.

Ms. XXX : I am writing that down.

.....

Ms. XXX : It's to be utilized for messages only.

.....

Ms. XXX : I need to know what my employees are doing.

What are you using it for?

Pat D. Westbrook
Texas Commission for the Blind
Page 7

.....

Ms. XXX : I told you, but that's not messages.

Ms. XXX : You are using it to redo the dots on the

brailler.

Ms. XXX : Right.

Ms. XXX : Okay, so that will be put down and you will
receive a memo recapitulating everything that
was said.

There is no evidence that other employees without disabilities

were similarly restricted in their use of equipment for
performing similar job functions.

Furthermore, despite the fact that generally employees are

both entitled and required to understand personnel policies, and
print copies of the personnel manual were available to other
employees, no personnel manual in a usable format was ever
provided to Ms. XXX Ms. XXX wrote in her 1990
evaluation for Ms. XXX that "XXX is quite familiar with
personnel policies, however, Regional Supervisor, when and if get
a braille Personnel Manual, would like XXX to become more
familiar with the Personnel Manual." (Emphasis added.) During
Ms. XXX later conversations with Ms. XXX Ms. XXX
advised Ms. XXX to review TCB's personnel manual and, in
particular, the section of the manual discussing employee
grievances. On May 28, 1992, in a taped conversation with Ms.
XXX , Ms. XXX said she understood that Ms. XXX wanted
the manual "in braille for the grievance procedure." Ms.
XXX said it would take some time but she would have someone
put that part on tape. Ms. XXX said that she could not put
the entire manual on tape but would also include the parts on
standards of conduct, abandonment of job, and sick leave. She
noted that "our blind staff really do need it in braille or tape,
so they can refer to it also." Yet a braille copy of the manual
was never available to Ms. XXX ; a tape-recorded copy of the
grievance section was not provided to Ms. XXX until June 10,
1992, shortly before the end of her employment. Because of this
failure by TCB, Ms. XXX was never able to avail herself of any
established TCB employee grievance procedure. Although the
Commission alleges that the personnel manual was not provided to
Ms. XXX because the manual was being revised, TCB officials
themselves recognized the possibility that personnel manuals in
an accessible format might never be provided to employees, as
noted in Ms. XXX 1990 evaluation. In fact, our investigation

Pat D. Westbrook
Texas Commission for the Blind
Page 8

revealed that a complete personnel manual in an accessible format

was never provided to any of the named individuals.2

In addition, Ms. XXX harassed Ms. XXX by criticizing

or ridiculing her for accommodations or actions relating to her
blindness. Among other treatment, Ms. XXX ridiculed or
criticized her for using a talking calculator, talking clock
(which Ms. XXX described as "stupid"), and braille machine
(all of which Ms. XXX needed as an accommodation for her
blindness); told Ms. XXX that she was going to "trip her with
that stupid cane;"3 and ridiculed her for wearing mismatched
shoes to work.4 Our investigation has revealed that this
harassing behavior targeted towards Ms. XXX ' disability
started no later than November 1991. In a tape recorded
conversation between Ms. XXX and XXX , the direct
supervisor of Ms. XXX in TCB's Austin office, Ms. XXX
explained in detail many of the episodes of harassment that she
faced. We believe that this harassment continued throughout the
rest of Ms. XXX ' employment at TCB.

While Ms. XXX complained both to her immediate supervisor

and to higher level supervisors about these matters, the
Commission either failed or refused to take prompt remedial
action. Despite Ms. XXX frequent calls to TCB supervisors in
Austin in May and June of 1992, at no time did the Commission
undertake any significant investigation to determine whether
Ms. XXX was being subjected to discrimination by her
supervisor. Tape recordings and other evidence demonstrate that
Ms. XXX presented her complaints to XXX and to
other TCB officials. While TCB contends that Ms. XXX
counseled Ms. XXX there is no evidence that that action was
prompt or that it remedied the situation. Ms. XXX also
contacted XXX , TCB's Director of Human Resources in
Austin, to complain about the conduct of Ms. XXX . Although
TCB alleges that Mr. XXX contacted Ms. XXX , who, in turn,
------------------------
2As noted below, the Commission's April 25, 1997, response
stated that, while the written Personnel Manual was being
revised, portions of the Personnel Manual were available in
accessible format upon request. At best, this practice was
ineffective, given Ms. XXX ' documented longstanding need for
portions of the Personnel Manual in an accessible format.

3The cane was used as an accommodation by Ms. XXX

4In addition, there is evidence that Ms. XXX and other

employees of TCB's Houston office harassed Ms. XXX for her
bringing her guide dog to work. For instance, one former
employee recalled that Ms. XXX complained about Ms. XXX
guide dog in early 1992 and humiliated her to the point that she
could no longer return to work with the assistance of her guide
animal.

Pat D. Westbrook
Texas Commission for the Blind
Page 9

contacted Ms. XXX there is no evidence that any further

investigation of possible discrimination was undertaken. On the
contrary, TCB admits that, rather than conduct an investigation
or attempt to remedy the perceived harassment, "Mr. XXX advised
[Ms. XXX to continue her efforts to work with Ms. XXX to
resolve the problems in their working relationship."5 Indeed,
TCB itself recognizes that its actions failed to remedy the
situation, stating in submissions to the Department of Justice:
"The extensive time and effort spent by all of those involved in
working with Ms. XXX seemed to effect no results in resolving
what appeared to be an irreconcilable difference between
Ms. XXX and Ms. XXX personalities."6 We have not found
any evidence to suggest that any disciplinary, corrective, or
preventative measures were ever taken at TCB to ensure that blind
employees (including Ms. XXX ) were not subjected to
discrimination by supervisors at TCB.

Not only did TCB fail to address and remedy these

allegations, the evidence shows that the harassment continued
after complaints were made to supervisory employees. A former
employee recalled that, towards the end of her employment at TCB,
Ms. XXX was harassed repeatedly by Ms. XXX This former
employee remembered hearing Ms. XXX criticize XXX
for the use of her braille machine and walking cane.

On June 16, 1992, the cumulative stress of her working

conditions forced Ms. XXX to take leave from her position at
the TCB. On June 23, 1992, Ms. XXX , along with XXX
a counselor at TCB's Houston office, went to Ms. XXX at her
home to interview her. In the conversation that followed,
Ms. XXX indicated that she would not be able to return to work
given her work conditions. On June 24, 1992, Ms. XXX
prepared a memorandum to XXX in which she described
her visit to Ms. XXX ' residence. In that memorandum,
Ms. XXX stated that,
------------------------
5July 15, 1996 letter from TCB to Department of Justice at
3.

6July 15, 1996 letter from TCB to Department of Justice, at

7. In that same correspondence, TCB acknowledged that its
responses to Ms. XXX allegations were "in keeping with the
agency's management philosophy which states that all work-related
problems should be communicated through the supervisory chain,
and resolved at the most immediate supervisory level whenever
possible." Recommending isolated meetings between a supervisor
and employee (without follow-up or oversight by any higher level
supervisor) is not an appropriate managerial response when an
employee claims that she is being harassed by that supervisor.
Indeed, TCB's stated management philosophy supports the need for
an effective employee complaint grievance process that is
independent of an employee's chain of command.

Pat D. Westbrook
Texas Commission for the Blind
Page 10

I then asked her if she planned to return to work and

if so, when. Mrs. XXX then began screaming that she
felt belittled, harassed, and intimidated in the
office, and that she would not return until something
changed in the office.

(Emphasis added.) On that same day, XXX called XXX

XXX , who was out of the office. She left a message with his
secretary that she was not resigning from her position, but was
unable to return because of the stressful workplace conditions.

Again, TCB failed to take any corrective measures or

investigate whether Ms. XXX was being subjected to harassment
in the workplace, and simply characterized Ms. XXX action as
a "verbal resignation."7 In a letter to Ms. XXX dated July 9,
1992, XXX stated that the agency chose to "accept
[her] verbal resignation so as not to reflect poorly on your
future job search." Although she was advised by both
Ms. XXX and Ms. XXX that Ms. XXX felt harassed by
Ms. XXX at the workplace, Ms. XXX apparently did not
investigate these claims or take any meaningful corrective
measures; instead, despite all the warnings that Ms. XXX may
have been harassed by Ms. XXX , she simply noted in her
July 9 letter to Ms. XXX that "Regional Supervisor XXX
XXX informed you on June 23, 1992 that she was willing to
accept the responsibility of working with you in trying to
resolve work-related issues."

2. XXX

XXX was employed as a counselor at TCB's San

Antonio office from XXX , until XXX . As
noted above, Mr. XXX alleges that he was denied reasonable
accommodations during his employment at TCB and received poor
evaluations for those areas where accommodations would have been
necessary.

Mr. XXX personnel files and other evidence establish

that TCB failed to provide necessary adaptive equipment to
Mr. XXX and that, as a result, Mr. XXX was prevented
from performing essential functions of his position. These
documents also show that Mr. XXX suffered diminished
performance evaluations because of his failure to complete these
goals and perform these functions.
------------------------
7Nevertheless, Ms. XXX expressed a strong willingness to
return to work if the harassment that she encountered from her
supervisor ended. Therefore, TCB's unilateral decision to end
her employment, instead of addressing her concerns, can be more
accurately characterized as a termination.

Pat D. Westbrook
Texas Commission for the Blind
Page 11

As a counselor, Mr. XXX required the use of documents

such as the administrative policy manual, the vocational
rehabilitation manual and the "MAPS" book (which contains vendor
codes, schedules of payments, approved services, etc.) to perform
many job functions. Specifically, as a counselor, Mr. XXX
was required to provide services for TCB clients that required
knowledge of information contained in these reference materials.
At least some of these documents were never provided in an
accessible format. While Mr. XXX was provided a reader,
those services were limited to approximately 15 hours per week,
often leaving Mr. XXX without access to key documents.
Furthermore, the nature of Mr. XXX work made part-time
reader services an ineffective accommodation. As a result, he
was often unable to perform essential job functions that required
the use or reference of these manuals and other documents.

Mr. XXX was also unable to perform other job functions

due to the failure of TCB to provide requested reasonable
accommodations in the form of computer equipment. During his
first several months, the lack of computer equipment hindered his
ability to successfully complete training, which in turn affected
his ability to perform many essential functions related to
providing counseling services to clients and to obtain the
privileges and benefits of employment made available to other TCB
employees. Later during his employment the lack of a scanner
(which Mr. XXX used to facilitate conversion of printed
documents to speech) meant that Mr. XXX had difficulty
reading documents and preparing documents related to many, if not
all, of his job functions. Again, the limited availability of
reader services did not serve as a successful alternative to the
computer equipment.

In addition to affecting his ability to perform job

functions, the lack of reasonable accommodations also affected
Mr. XXX job evaluations. Although Mr. XXX received a
very good performance evaluation in 1994, he was unable to
perform certain job functions and therefore was unable to
accomplish several goals based on his lack of appropriate
adaptive equipment. The goals Mr. XXX established for his
last evaluation period were discussed with and ultimately
ratified by XXX , his immediate supervisor. These goals,
therefore, are evidence of the job expectations for Mr. XXX
during that period. In his 1994 personnel evaluation statement
of goals ("MBO Goals"), Mr. XXX states that Mr. XXX did not
accomplish his goal of developing a computer system to support
"encumbrance" activities because: "Replacement computer
equipment and peripheral devices acquired in April 1994 could not
be adapted due to limitations in configuration."

Mr. XXX also noted in Mr. XXX 1994 personnel

evaluation assessment of goals and achievements that Mr. XXX
did not achieve several other goals because of his lack of proper
computer equipment. In this rating, Mr. XXX stated that his

Pat D. Westbrook
Texas Commission for the Blind
Page 12

goal would be, "I will research title I of the ADA by the end of
3rd Qtr. so I may be better informed in counseling consumers on
ADA issues." In Mr. XXX evaluation, Mr. XXX stated:

You did not accomplish this goal due to the fact you
did not have the scanner which had been removed in
April 1994 due to incompatibility with the replacement
computer. The scanner did not arrive until your last
day on the job.

Mr. XXX also noted that Mr. XXX failed to accomplish

another goal because of his lack of proper adaptive equipment.
Mr. XXX stated that his goal would be,

I will develop a presentation on all facets of title I

 of the ADA & present briefings to other staff members
by 3rd Qtr. and brief requesting organizations on ADA
as requested by Regional Supervisor.

Mr. XXX noted that Mr. XXX failed to accomplish this goal.
"While you did some research on this, you did not totally
complete it and this also ties in pretty much with the same
reason as cited above." The importance of adaptive equipment to
the accomplishment of these goals is demonstrated by Mr. XXX
comments indicating that Mr. XXX could not accomplish his
goals without this equipment.

TCB alleges that these lower evaluations were insignificant,

either because they did not affect Mr. XXX overall
evaluations or because they involved minor performance goals.
However, the evidence establishes that these failures were
documented in Mr. XXX personnel file and were therefore
part of his record of performance.8 Furthermore, because the
------------------------
8The importance of this overall record is evidenced by the
circumstances surrounding Mr. XXX promotional application
in August, 1994. Mr. XXX along with two other current
employees, applied and was interviewed for a promotion to the
position of VR Coordinator. Mr. XXX was not given a second
interview and was not selected for the position. Mr. XXX Mr.
XXX supervisor and the person who ultimately hired the VR
Coordinator, indicated to Mr. XXX that he was not selected
because his overall work performance was less than that of the
eventual selectee. Obviously, Mr. XXX overall work
performance would have been enhanced had he obtained the
requested adaptive equipment and therefore been able to complete
all of his stated goals. While there is insufficient evidence to
establish that the failure to provide reasonable accommodations
did or did not lead to Mr. XXX non-selection for the
promotional position, the evidence does suggest that Mr.
XXX overall work performance -- including his completion
(continued...)

Pat D. Westbrook
Texas Commission for the Blind
Page 13

goals were negotiated with and ratified by his supervisor,

Mr. XXX performance goals constituted the mutual
expectations of an employee and his supervisor of the employee's
job duties and therefore are strong evidence of his essential job
functions. The evidence also establishes that, as detailed
above, the failure to reasonably accommodate Mr. XXX
prevented him from performing essential job functions, regardless
of how that failure was evaluated by TCB. Alternatively, by
depriving Mr. XXX of the opportunity to work towards
innovative goals and perform in "growth areas," and adversely
affecting his performance evaluation, TCB denied him privileges
and benefits of employment (including pay raises, promotions,
etc.), afforded to others.9

3. XXX

XXX started work as a counselor in TCB's San

Antonio office on XXX Shortly after starting at the
Commission and at several points throughout her employment at the
Commission, she was required to attend training sessions. While
written materials were often provided in an accessible format,
our investigation found that some important materials presented
during the class, such as overhead projections, materials written
on either blackboards or large writing pads, or handouts, were
never provided in an accessible format. While Ms. XXX
repeatedly informed TCB of the lack of materials in accessible
format in written comments (copies of which were reviewed and
signed by XXX , her immediate supervisor), the evidence
reveals that the Commission did not ensure that appropriate
auxiliary aids or services were provided to accommodate her
disability and maximize the benefits of her training.

The evidence also shows that Ms. XXX experienced

significant delays in obtaining equipment necessary as
accommodations for her blindness; for example, it took over a
year for her to receive a computer with adaptive equipment
(including speech synthesizer, braille display, and scanner).
The Commission has admitted that, while some equipment was
provided to Ms. XXX a significant amount was provided only
------------------------
8(...continued)
or non-completion of MBO goals -- carried some importance for his
employment and advancement at TCB.

9TCB also asserts that Mr. XXX had full access to a

desktop computer system in order to successfully perform his job
functions and that a laptop computer was therefore unnecessary.
This statement is contradicted by the fact that Mr. XXX
performance evaluation indicates that he was unable to perform
specific job functions because of the unavailability of this
adaptive equipment.

Pat D. Westbrook
Texas Commission for the Blind
Page 14

after delays of many months.10 Specifically, ten items of

adaptive equipment were recommended for Ms. XXX in late
October 1993 and approved in early November 1993. Nevertheless,
none of this equipment was ordered until late December 1993 and
some equipment was not ordered until March 1994. When one item,
a braille display terminal, was eventually delivered on May 6,
1994, it was discovered that an additional port was necessary for
connecting it, and installation of the display was thereby
delayed another two months, until July 8, 1994.11

Our investigation revealed that important forms and

reference manuals used by TCB counselors were never provided to
Ms. XXX in accessible format or were provided only after
------------------------
10The Commission also alleges that while certain equipment
was either not provided or provided only after serious delays,
these deficiencies were mitigated through the provision of other
equipment. For example, the Commission stated that "Ms.
XXX did use a closed-circuit television, extensive adaptive
computer equipment, and reader services to meet her needs to
access print materials." July 15, 1996 letter from TCB to
Department of Justice (emphasis in original). However, some of
this equipment, including the closed-circuit television, could
not be used effectively by Ms. XXX in light of the extent
of her vision impairment and was not recommended by her
employment specialist, who recommended equipment based upon Ms.
XXX disability and work requirements. Ms. XXX
inability to effectively use a closed-circuit television is also
supported by her response to a memorandum, dated August 17, 1993,
in which Ms. XXX is asked for her preference of four
alternate media (large print, braille, computer disk, and
cassette tape) for 17 different types of employee documents. In
all of those areas, Ms. XXX consistently indicates no
interest in large print materials and consistently chooses every
other alternate media over large print. Because a closed-circuit
television is designed to magnify the image of printed materials
(much like large print), a closed-circuit television would not be
an effective accommodation for Ms. XXX disability.

11TCB asserts that the equipment ordered for Ms. XXX

was merely an upgrade to a laptop computer that she was
previously given as a TCB client. TCB asserts that she could
still use her old laptop computer and also had other equipment
available for her use. The evidence establishes, however, that
she required her laptop computer for her daily work and that the
upgrade was necessary to allow her to access certain employee
manuals and forms (which she required in a non-print alternate
media as an accommodation for her disability) that she used in
her work. The need for an upgrade is also supported by the fact
that TCB's adaptive equipment expert also recommended ordering
this equipment for Ms. XXX . The older laptop computer was
incapable of accessing these materials.

Pat D. Westbrook
Texas Commission for the Blind
Page 15

significant delays. These include forms for reporting, the

administrative policy manual, the personnel manual, and the
"MAPS" book. In her work as a counselor, it was essential for
Ms. XXX to have access to this information because she
could not provide services for TCB clients without knowledge of
the information contained in these references. Although TCB may
have been able to allow Ms. XXX to meet the requirements of
her job functions by promptly providing appropriate adaptive
equipment, this option was never pursued. Therefore, to
accommodate Ms. XXX disability, TCB was required to
provide other reasonable accommodations.

The Commission alleges that either Ms. XXX never

requested these documents in accessible format or that
Ms. XXX , like many staff members, was expected to rely on
her Rehabilitation Assistant, XXX , to assist her when only
inaccessible documents were available. However, evidence
indicates that the failure or refusal of Ms. XXX to cooperate
left Ms. XXX without the assistance necessary to overcome
the unavailability of documents in accessible format. Further,
Ms. XXX repeated requests to have her rehabilitation
assistant changed were all refused.12

Ms. XXX frustrations with the Commission's failure

to reasonably accommodate her disability ultimately contributed
to her decision to resign from the Commission.

4. Policies or Practices

Based on the facts outlined above, the Department finds that

the Commission has policies or practices of failing to provide
-------------------------
12At one point, Ms. XXX submitted a written memorandum to
her supervisor in which she stated that she felt that her job
functions did not include "accommodating" Ms. XXX . In that
memorandum, Ms. XXX even stated: "I feel I am not responsible
to accommodate anyone pertaining to their direct job duties."
Ms. XXX also wrote a memorandum to Ms. XXX stating that
she preferred not to communicate with her verbally or in writing.
The entirety of the evidence reveals a clear attempt by Ms.
XXX to work more effectively with Ms. XXX (who refused to
accommodate her disability). Nevertheless, despite these
documented difficulties between Ms. XXX and Ms. XXX , Mr.
XXX refused to assign a different rehabilitation assistant to
work with Ms. XXX .

TCB also asserts that they were unable to process Ms.

XXX request for a new Rehabilitation Assistant because
her request was too sudden and could not be effected on such
short notice. The evidence indicates, however, that her request
for a new Rehabilitation Assistant was longstanding and occurred
over several months.

Pat D. Westbrook
Texas Commission for the Blind
Page 16

certain employee manuals and information in accessible formats

(e.g. braille or audio tape) appropriate to the needs of
individuals with disabilities and failing to ensure that
necessary adaptive equipment is provided in a timely manner.13
Specifically, we find that TCB has failed to ensure the provision
of personnel and counselor manuals in an accessible format
appropriate to their employees' needs and caused employees with
visual impairments to suffer unreasonable delays before being
provided with necessary adaptive equipment. While it may be true
that the Commission provides a substantial number of documents in
accessible format to its employees, clients, and others, and also
does provide many of its employees with adaptive equipment, the
evidence also shows that the procedural requirements and
bureaucratic delays necessary to obtain these accommodations
effectively denies at least some of its blind or visually
impaired employees necessary accommodations. In addition, when
accommodations are provided, the Commission does not follow-up or
engage in an interactive process and individualized assessment
with at least some of its blind or visually impaired employees to
determine if the accommodation provided actually meets those
employees' needs. The evidence demonstrates that the
Commission's failure to provide manuals in an accessible format
extends to other blind or vision impaired employees other than
those mentioned here. The Department also finds that these
problems and others are compounded by TCB's policy or practice of
failing to adequately address employee grievances or even to
allow adequate access to information about grievance procedures
and other personnel matters. For instance, TCB's failure to
-------------------------
13In its letter of April 25, 1997, the Commission states that
it maintained a policy of providing employee documents, including
portions of its MAPS manual, in alternate formats. In addition,
portions of the Personnel Manual "which were needed by an
employee in an accessible format were converted from regular
print in the agency's local office, as requested." During our
investigation, several blind counselors independently stated
that, while many other documents were provided in an accessible
format, portions of the MAPS book were never provided to them in
an accessible format, despite their requests. In addition, the
failure of the Commission to provide Ms. XXX with portions of
the Personnel Manual in an accessible format, despite statements
in her personnel evaluation and requests for such material near
the end of her employment, strongly suggests that the
Commission's policy did not adequately serve the needs of its
blind employees for important documents in an accessible format.
Finally, according to TCB's April 25, 1997, submission,
information about the grievance process was converted to braille
on six occasions between January and June 1992. Nevertheless,
despite repeated requests from Ms. XXX and acknowledgement
from Ms. XXX that a braille version of the grievance process
was needed by Ms. XXX , a braille copy of the grievance process
was never provided to Ms. XXX during her employment.

Pat D. Westbrook
Texas Commission for the Blind
Page 17

properly address Ms. XXX complaints of harassment by her

supervisor over several months allowed her supervisor to harass
Ms. XXX without fear of discipline, thereby making Ms. XXX
work conditions unbearable.

II. CONCLUSIONS OF LAW

A. XXX

The Department finds that XXX who is blind, is a

qualified individual with a disability as defined by the ADA.14
The Department finds that TCB discriminated against Ms. XXX in
violation of the ADA in several ways. First, the restriction on
use of certain adaptive equipment, including the braille machine,
talking clock and talking calculator, amounts to an illegal
denial of reasonable accommodations to Ms. XXX .15

While TCB alleges that these restrictions were made for

work-related reasons related to Ms. XXX alleged misuse of
this equipment, the United States finds that this argument is
pretextual. Our investigation reveals that Ms. XXX would have
little justification or reason for misusing the equipment.
Furthermore, apart from the possible suspicions of other
employees, no documents or other evidence suggests that
Ms. XXX was misusing her braille machine. Further, even if
the allegations of misuse of the equipment were true, the
restrictions placed on Ms. XXX were overbroad and prevented
Ms. XXX from fully performing all the job functions of her
position. TCB's actions, therefore, amounted to a denial of
--------------------
14As the incidents forming the basis of Ms. XXX
complaint occurred before July 26, 1992, the requirements of
section 504 of the Rehabilitation Act of 1973, 29 U.S.C. SS 701
et seq. ("Rehabilitation Act""), determine whether her rights as
an employee were violated. That law, and the regulations
promulgated thereunder, establish that Ms. States is a "qualified
individual with a disability." 42 U.S.C. S 12102(2) (1990); 29
U.S.C. S 706(8)(B) (1992). Ms. XXX rights under the
Rehabilitation Act are identical, however, to those under title I
of the ADA.

15As discussed above, the braille machine used by Ms. XXX

was essential to her job as a receptionist. In addition, because
Ms. XXX was a receptionist and was required to note the time
of calls and messages, she needed a convenient means of telling
time. Accordingly, her talking clock was a reasonable
accommodation to allow her to perform the essential job function
of telling time.

Pat D. Westbrook
Texas Commission for the Blind
Page 18

reasonable accommodations.16 As a public employer, the

Commission is required to make reasonable accommodations to the
known physical and mental limitations of otherwise qualified
employees with disabilities, unless it can demonstrate that
providing the accommodation would impose an undue hardship on the
operation of its program. 28 C.F.R. S 41.53. As discussed below,
the Commission has not claimed undue hardship and has asserted
that it was justified in restricting Ms. XXX use of adaptive
equipment. As also discussed below, we believe that these
claimed justifications are pretextual and inadequate to
constitute a defense to denying Ms. XXX her use of adaptive
equipment.

The Department also finds that the conduct to which

Ms. XXX was subjected constitutes a hostile work environment
in violation of the ADA, and that TCB failed to remedy promptly
the harassment.17 The harassing comments and insults concerning
Ms. XXX disability, the restrictions on her ability to use
adaptive equipment,18 the attitude of TCB employees towards her
use of her cane, and the repeated failure by TCB officials to
address Ms. XXX complaints all amount to harassment on the
basis of disability, which created a hostile work environment.

In submissions to the Department of Justice, TCB officials

do not categorically deny that the harassing comments and
treatment took place. Instead, TCB officials allege that the
remarks -- made by Ms. XXX immediate supervisor -- were made
in a "tongue-in-cheek" manner or were taken out of context by
Ms. XXX Somewhat alarmingly, the Commission also attempts to
use psychological profiles developed while Ms. XXX was a TCB
client to blame Ms. XXX for her negative reaction to these
comments, stating that such reactions were "predicted by
psychologists who had worked with Ms. XXX as our
------------------------
16As discussed above, the standards in the regulations issued
under section 504 of the Rehabilitation Act and the Department of
Justice implementing regulation, 28 C.F.R. Pt. 41, apply to Ms.
XXX claims. See 28 C.F.R. S 35.140.
 17Harassment violates the ADA because it adversely affects
Ms. XXX opportunities or status with respect to the terms,
conditions, or privileges of her employment. 28 C.F.R. SS 41.52
(b) and (c) (9).

18Because the adaptive equipment that was restricted (i.e.

braille machine and talking clock) also allowed Ms. XXX to
perform tasks that persons without disability would take for
granted (e.g. telling time and taking notes for oneself), we
believe that Ms. XXX unnecessary restrictions on the use
of such equipment based on pretextual justifications also
constitute harassment.

Pat D. Westbrook
Texas Commission for the Blind
Page 19

consumer..."19 TCB also states that Ms. XXX was using her

adaptive equipment for tasks outside her job assignments and that
the use of the adaptive equipment upset other employees.20

Evidence in the form of tape recordings and testimony

supports Ms. XXX allegations that these comments and actions
occurred. Further, the Department finds that TCB's arguments
either do not present a defense to the allegations or are
pretextual. First, it is not an adequate defense to argue that
disability-based insults and comments of the kind experienced by
Ms. XXX when they create a hostile work environment, were
made in a "tongue-in-cheek" or joking manner. Second, the
evidence indicates that the comments, denials of reasonable
accommodations and work restrictions were not made in a joking
manner and were harassing. Interviews with Ms. XXX and other
employees indicate that the actions of TCB officials created an
objectively hostile or abusive work environment and that
Ms. XXX subjectively perceived them as abusive. Finally,
TCB's assertion that Ms. XXX misused her adaptive equipment is
not supported by any evidence and is pretextual. Even assuming
that other employees disliked her use of her adaptive equipment,
this evidence only supports Ms. XXX claim of a hostile work
environment. The evidence establishes that her adaptive
equipment was necessary for her to perform her essential job
functions and allowed her to perform ordinary tasks that others
without her disability would take for granted.
 19October 31, 1996, letter from TCB to Department of Justice,
at 14. If TCB relied on information developed during the time
that Ms. XXX was a client of TCB to justify actions taken
against her while she was an employee of that agency, this
practice would violate title I of the ADA, because title I
requires that this information be treated as confidential and
maintained in separate files. 42 U.S.C. S 12112 (c) (4) (C), 29
C.F.R. S 1630.14 (d) (1). This information cannot be used for any
purpose that discriminates against an employee with a disability.
29 C.F.R. S 1630.14 (d) (2). Alternatively, if TCB did not rely on
this information in making its employment decisions concerning
Ms. XXX the reliance on such information at this time is a
pretextual justification for its prior actions.

20TCB also references several complaints from Ms. XXX

coworkers to support its claim that she had "difficulty in
dealing with supervisory authority, interpersonal communications,
and handling conflict." Even if true, almost all of these
"complaints" arose near the end of her employment in a difficult
work situation and support the claim that Ms. XXX subjectively
felt that she was in an impossible and harassing work
environment. Even more telling, however, is the fact that almost
all of the complaints involve allegations completely unrelated to
her supposed misuse of her adaptive equipment.

Pat D. Westbrook
Texas Commission for the Blind
Page 20

The Department finds that TCB failed to remedy promptly the

harassment. While TCB alleges that it investigated the
allegations and counseled employees, our investigation found that
most of the complaints were not investigated, that any
investigation that was done was insufficient and that any actions
taken by TCB were not prompt and did not remedy the harassment.

Finally, the Department finds that, rather than remedy the

harassment and offer Ms. XXX a workplace free from harassment,
TCB created a condition which resulted in her discharge.
Evidence clearly establishes that, as a result of this treatment,
Ms. XXX suffered lost wages, severe emotional damages and
other damages.

B. Failure to Reasonably Accommodate Other Employees

 The ADA prohibits public entities from failing to make
reasonable accommodations to the known physical and mental
limitations of otherwise qualified employees with disabilities,
unless the entity can demonstrate that providing the
accommodation would impose an undue hardship on the operation of
its program. As noted above, the Department has concluded that
the Commission maintains a practice of failing to provide certain
employee manuals and information in accessible formats
appropriate to the needs of individuals with disabilities and
failing to ensure that necessary adaptive equipment is provided
in a timely manner. The Department concludes that these actions
constitute a practice that discriminates against qualified
individuals with disabilities. Specifically, the Commission has
discriminated against both XXX and XXX .21
Its policies and practices, including its failure to provide
manuals and other documents in alternate formats, discriminate
against others as well on the basis of disability. As described
below, the failure to reasonably accommodate the other employees
was inappropriate, and TCB has not claimed that accommodating
them would impose an undue hardship on its operations.

1. XXX

The Department finds that Mr. XXX , who is blind, is a

qualified individual with a disability as defined by the ADA.
The Department concludes that the Commission discriminated
against Mr. XXX by failing to provide reasonable
accommodations to Mr. XXX during the course of his
employment at the Commission. As noted above, Mr. XXX was
unable to perform all of the functions of his position and was

2129 C.F.R. S 1630.9. As the conduct affecting the other

employees occurred after the effective date of title I of the ADA
and because TCB is an "employer" for purposes of title I, 42
U.S.C. S 12111(5); 29 C.F.R. 1630.2(e), the conduct towards the
other employees must be examined under title I.

Pat D. Westbrook
Texas Commission for the Blind
Page 21

prevented from achieving performance goals because of TCB's

failure to provide necessary adaptive equipment (e.g. computer
scanner). These documents also show that Mr. XXX suffered
diminished performance evaluations because of his failure to
complete these goals.

The Commission alleges that the delays in providing adaptive

equipment did not violate the ADA because such delays were
necessitated by State purchasing policies, utilized by the
Commission, that require approval of numerous TCB officials
before adaptive equipment can be purchased. In addition, the
Commission states that, once the equipment was ordered, further
delays were inevitable because the manufacturer of the equipment
was unable to provide the necessary equipment. In addition, the
Commission alleges that the consequences of its failure to
provide adaptive equipment were negligible, since Mr. XXX
was not disciplined, demoted or subjected to any adverse
employment action because of his failure to perform all of his
job functions.

The Department concludes that these allegations do not

constitute a defense to TCB's failure to reasonably accommodate
Mr. XXX . First, while certain delays in obtaining necessary
adaptive equipment may be beyond the control of an employer,
TCB's reliance on its own purchasing policies or state law cannot
serve as a defense to the ADA's mandate that employers provide
reasonable accommodations to qualified individuals with
disabilities. In addition, as made clear in TCB's submissions,
incompatible adaptive equipment was ordered for Mr. XXX
thereby creating further delays. TCB cannot avoid its
responsibility to provide reasonable accommodations for its
employees based on its own mistakes. Second, even if TCB took no
adverse action against Mr. XXX , TCB's failure to reasonably
accommodate Mr. XXX by failing to take every step within its
control amounted to a denial to Mr. XXX of full enjoyment of
all the terms, conditions, or privileges of his employment with
TCB. Third, although "innovative," the performance goals that
Mr. XXX did not meet as a result of the TCB's failure to
provide appropriate reasonable accommodations, were nonetheless
items in his performance evaluation that were negotiated with,
and ultimately ratified by, his supervisor. As such, they
constitute the mutual job expectations of an employee and his
supervisor and represent strong evidence of the essential
functions of Mr. XXX employment. Alternatively, even if
these goals could be deemed as simply "innovative" or "growth
areas" and useful only for justifying promotions or salary
increases, the opportunity to work towards "innovative" goals was
offered to and negotiated with other employees. TCB's failure to
provide Mr. XXX with needed accommodations in these areas
therefore denied him the privileges and benefits of employment
made available to other employees.

Pat D. Westbrook
Texas Commission for the Blind
Page 22

The Commission asserts that Mr. XXX had extensive

reader service hours available to him. Based on the nature of
Mr. XXX work, however, we do not believe that reader
services were an effective alternative to adaptive equipment.
Finally, the Commission states that, even if Mr. XXX needed
scanners or other adaptive equipment in order to perform his
work, other similar equipment was freely available for his use in
his workplace. We believe that this assertion is incorrect or
pretextual because Mr. XXX personnel evaluation indicates
that he was unable to perform certain goals because of the
unavailability of this equipment.

2. XXX

The Department finds that XXX , who is blind, is

a qualified individual with a disability as defined by the ADA.
Our investigation has revealed that the rights of Ms. XXX
under the ADA were violated by the Commission. Specifically, we
have determined that the Commission failed to provide reasonable
accommodations to Ms. XXX during the course of her
employment at the Commission.

As discussed above, the job functions essential to her work

as a counselor required that Ms. XXX have access to the
information contained in her reference materials. The Commission
alleges that the delays in providing adaptive equipment were
reasonable, and that the failure to provide documents in
accessible format were overcome through the use of a
Rehabilitation Assistant. However, we conclude that the delays
were not reasonable and that TCB was fully aware that the
accommodation selected by TCB -- the use of a Rehabilitation
Assistant -- could not effectively accommodate Ms. XXX to
allow her to perform her job functions. Despite this failure,
and despite Ms. XXX repeated requests, TCB failed or
refused to reassign a new Rehabilitation Assistant to work with
Ms. XXX and failed or refused to provide the documents in
accessible format.
 Finally, the Commission states that Ms. XXX did not
need adaptive equipment or written materials in alternate formats
because she effectively used a closed-circuit television to
magnify print material and had extensive reader hours available
for her use. This equipment, however, could not be used
effectively by Ms. XXX in light of the extent of her vision
impairment. In addition, prior to working at TCB, Ms. XXX
was a client of TCB who received employment services, including
an evaluation by an employment specialist. This specialist did
not recommend that this equipment be used. Finally, due to the
nature of Ms. XXX work and problems with her
Rehabilitation Assistant, reader services were an ineffective
alternative.

Pat D. Westbrook
Texas Commission for the Blind
Page 23

C. Policies and Practices

As noted above, the ADA requires the Commission to make

reasonable accommodations to the known physical or mental
limitations of otherwise qualified employees with disabilities,
unless the Commission can demonstrate that providing the
accommodation would impose an undue hardship on the operation of
its program. As noted above, the Department finds that the
Commission maintains a practice of failing to provide necessary
documents to blind or visually impaired employees in an
accessible format appropriate to individual needs and a policy or
practice which causes employees with disabilities to suffer
unreasonable delays before being provided with appropriate
adaptive equipment. These reasonable accommodations are
necessary for employees who are blind or who have vision
impairments to perform their work. As the Commission has not
claimed and the evidence does not show that providing these
accommodations would impose an undue hardship on the Commission's
programs, we find that these policies or practices violate title
II of the ADA.

III. CONCLUSION

The Department hereby determines that the actions described

above by the Commission violated Title II of the ADA.
Specifically, the Department finds that TCB discriminated against
XXX , and XXX in violation
of Title II of the ADA. The Department also finds that TCB's
failure or refusal to provide reasonable accommodations
constitutes a policy or practice that discriminates against
qualified individuals with disabilities in violation of the ADA.

The Department hereby offers the Commission an opportunity

to negotiate a voluntary compliance agreement, as provided in 28
C.F.R. S 35.173. Such agreement must provide appropriate
remedies for the victims of discrimination and will ensure that
the type of violation that occurred in the past will not be
repeated.

In order to resolve this matter prior to litigation, we

believe that a settlement agreement must include, at a minimum,
TCB's agreement to provide adequate compensatory damages to
XXX , and XXX and TCB's
agreement to undertake steps to ensure that the needs of other
employees with disabilities are met consistent with the
requirements of title II. In addition, we also believe that a
settlement agreement must include an effective employee complaint
grievance process that is independent of an employee's chain of
supervision. We propose the following resolution:

1. TCB will agree to pay appropriate compensatory

damages to XXX and
XXX and backpay for XXX .

Pat D. Westbrook
Texas Commission for the Blind
Page 24

2. TCB shall designate an ADA Compliance Officer

responsible for receiving and investigating all
complaints of discrimination on the basis of
disability in employment at TCB. This ADA
Compliance Officer must investigate all
complaints, advise complainants of their right to
file a complaint with the Equal Employment
Opportunity Commission or the Department, maintain
records, and provide bi-annual summaries of
complaints to the Department for a period of five
years.
 3. TCB shall agree that any complaint received by the
ADA Compliance Officer that is not satisfactorily
resolved to the complainant's satisfaction within
120 days shall be referred to mediation by an
independent mediator.

4. TCB shall agree to provide reasonable

accommodations to all new employees within 45 days
of being hired by TCB. In addition, TCB shall
agree to reassess the need for additional
accommodations for any existing TCB employee
within 30 days of request by any employee and will
provide any necessary reasonable accommodations
within 60 days of such request.

5. TCB shall agree to provide training for all

supervisory employees in all TCB offices
concerning the rights and needs of persons with
disabilities (including persons with vision
impairments). This training shall be provided by
an organization with recognized expertise in these
issues.

6. TCB shall establish an escrow account to

compensate any additional persons subjected to
discrimination on the basis of disability.

7. If a TCB employee who is blind or has a vision

impairment makes a request to his or her immediate
supervisor for a braille, tape, or computer disk
copy of any manual or publication that is issued
to or provided for use by other employees, TCB
shall provide the requested copy within 7 days of
the request. TCB shall make copies of all
employee manuals or publications available in all
three accessible formats and shall make its best
efforts to accommodate the employee's choice of
formats.

Edward Miller and Ken Nakata are the trial attorneys with
the Disability Rights Section who will be handling this matter.

Pat D. Westbrook
Texas Commission for the Blind
Page 25
Mr. Miller or Mr. Nakata will be in contact with your attorneys
within 15 days to determine whether the Commission wishes to
voluntarily resolve this matter.

Under the Freedom of Information Act, it may be necessary to

release this document and related correspondence and records upon
request. In the event that we receive such a request, we will
seek to protect, to the extent provided by law, personal
information which, if released, could constitute an unwarranted
invasion of privacy.

If you or the Commission have any questions, please feel

free to contact Mr. Miller at 202/514-3422 (voice or TDD) or
Mr. Nakata at 202/307-2232 (Voice) or 202/307-0663 (TDD).

Sincerely,

Isabelle Katz Pinzler

Acting Assistant Attorney General
Civil Rights Division

cc: XXX
XXX
XXX
XXX

Frederick Schroeder
Commissioner
Rehabilitation Services Administration
U.S. Department of Education

Howard Moses
Deputy Assistant Secretary
Office of Special Education
and Rehabilitation Services
U.S. Department of Education