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 DJ 204-75-8 MAY 8 1997 BY FEDERAL EXPRESS Washington, D.C. 20035

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 Ms. XXX : Well, what are you brailling? : 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 Ms. XXX Ms. XXX : XXX me about that? are you going to start harassing

: I'm just asking you what you are brailling : 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. : Your what wear out? : My dots. : On the brailler? : No, on the papers. : XXX , you are going to have to explain what you mean by your dots. I do not understand. : 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. : Oh, so you need new paper? : No, you have to redo the whole thing. : Why not just get new paper? : 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 Ms. XXX Ms. XXX Ms. XXX Ms. XXX Ms. XXX

Ms. XXX Ms. XXX Ms. XXX Ms. XXX

Ms. XXX Ms. XXX Ms. XXX ..... Ms. XXX ..... Ms. XXX

: So, it's safe to say that you are just redoing dots on your brailler. : That's what I am doing. : I am writing that down.

: It's to be utilized for messages only.

: 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 Ms. XXX Ms. XXX Ms. XXX : I told you, but that's not messages. : You are using it to redo the dots on the brailler. : Right. : 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 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

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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