EEOC agrees that Agency discriminated against an applicant for employment. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination when he was twice denied employment with the Agency as a Special Agent. Complainant’s first EEO was on the on the basis of disability (hypertension), and his second EEO was on the basis of his disability and/or in reprisal for prior protected EEO activity (his first EEO). Following Complainant’s request for a hearing, the Agency filed a Motion to Dismiss and a motion for summary judgment. Complainant did not respond. The Administrative Judge (AJ) issued his decision dismissing one complaint as moot and granted summary judgment to the Agency on the other. The Agency issued a final decision (FAD), the Agency concluded the AJ erred and that the Agency was not in compliance with the Rehabilitation Act. It also conceded it discriminated against the Complainant on the basis of disability and Complainant was entitled to compensatory damages.

On appeal, the EEOC’s Office of Federal Operations (OFO) held that the record is unclear when the Agency actually regarded Complainant as an individual with a disability, which would play a role in determining compensatory damages. The OFO agreed with the Agency that it had asked Complainant impermissible pre-employment medical questions.  Further, the OFO held that the record lacks any support for a finding that Complainant was a person with a disability, within the meaning of the ADA, when he was disqualified the second time. Additionally, the OFO stated that the Complainant failed to demonstrate that the agency’s reasons for disqualifying him for employment were pretextual. The OFO was unable determine compensatory damages, reasoning that the record was inadequately developed, and remanded the final decision back to the Agency to determine appropriate compensatory damages.

John M. Moran v. Department of Justice, EEO Appeal No. 01986228 (July 27, 2001)