T.

7/233/93 SBO:MF:SK:ca:jfb XXXX XXXX XXXX Re: Complaint Number 192-T2-00385 New Complaint Number 204-30-4 Dear Mr. XXX : Please note the new complaint number assigned to your complaint. Please use the new number in all correspondence and other communications regarding this complaint. This letter responds to your complaint filed with our office on July 30, 1992 against the Office of the Attorney General of the Commonwealth of Kentucky under title II of the Americans with Disabilities Act (ADA) . Because the Office of the Attorney General receives Federal financial assistance from the Department of Justice, your complaint was also considered under section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of disability in programs or Activities that receive Federal financial assistance. Our investigation under title II covered only events that occurred on or after the effective date of title II of the ADA, which was January 26, 1992. Your complaint alleged that the Office of the Attorney General of the Commonwealth of Kentucky discriminated against you in employment because of your disability (blindness), in violation of subtitle A of title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. {{12131 -12134, which prohibits discrimination on the basis of disability by State and local governments. Specifically, the complaint alleges that the Office of the Attorney General failed to make reasonable accommodation for your disability prior to XXX , and that your disability was a principal contributing factor, and may have been the decisive factor, in the decision to terminate your employment on XXX . Title II of the ADA prohibits employment discrimination against qualified individuals with disabilities on the basis of their disability in the services, programs, or activities of a

State or local government. Our office enforces the requirements of title II of the ADA for activities relating to law enforcement

cc: records CRS Chrono Friedlander Kaltenborn udd:barron.XXX ltr 01-00064 -2and the administration of justice through investigation, negotiation, and if necessary, referral for possible litigation. The Department's regulation implementing title II, 28 C.F.R. pt. 35, adopts the substantive standards contained in the Department of Justice's section 504 coordinating regulation for federally assisted programs, 28 C.F.R. pt. 41, as the standard for employment complaints under title II that are not also covered by title I of the ADA. 28 C.F.R. { 35.140 [b][2]. Because your termination occurred prior to July 26, 1992, the effective date of title I of the ADA, the standards in part 41 apply to your complaint. As relevant here, part 41 provides that "[n]o qualified handicapped person shall on the basis of handicap be subjected to discrimination in employment ...." 28 C.F.R. 41.52[a]. A qualified handicapped person in the employment context is "... a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question .... 28 C.F.R. 41.32. A public entity "... shall make reasonable accommodation to the known physical ... limitations of an otherwise qualified handicapped ... employee unless [the entity] can demonstrate that the accommodation would impose an undue hardship on the operation of its program." 28 C.F.R. 41.53. The requirements of the Department's regulation implementing section 504 for its federally assisted programs and activities are essentially the same as the title II requirements with respect to employment. 28 C.F.R. {{ 42.510 - 42.513.

The Civil Rights Division has completed its investigation of your complaint. Our investigation revealed that your termination by the Office of the Attorney General was based on substantial evidence of misconduct by you, and was not related to your disability. Specifically, the Office of the Attorney General had evidence that you formed a close personal relationship with an individual who was a party in a disciplinary proceeding before the Kentucky Board of Medical Licensure while you were serving as the hearing officer in that proceeding, and that you continued to serve as hearing officer in that proceeding and issued rulings favorable to that individual without revealing your relationship to either the Board or your employer. You admitted that you had numerous lengthy telephone conversations with the individual and took a weekend trip to New York with her. Please note that the Division does not endorse the decision of the Office of the Attorney General and is not expressing an opinion on the merits of your case. We have, however, determined that those ex parte contacts with a party to a proceeding pending before you were the basis for your termination and that the asserted reasons for your discharge were not a pretext for discrimination on the basis of your disability. We have also determined that the procedures followed by the Office in your case were consistent with the officers procedures

01-00066 -3for handling allegations of misconduct by attorneys employed by the office and with the procedures followed in a similar case involving an individual who did not have a disability. Specifically, the charges were reviewed by the Deputy Attorney General, an investigation was conducted, and the Deputy Attorney General met with you and your attorney on two occasions to review the charges and give you an opportunity to respond. In addition, we have determined that the timing of your termination, on XXX , was consistent with the Office's procedures. The Office received information concerning your involvement with this individual on May 5, 1992 and initiated an investigation. On June 8, 1992, you were interviewed with

respect to the complaint by the Deputy Attorney General, with your attorney present. On June 17, you received a letter informing you that the Office intended to dismiss you and that you had the right to request a pretermination hearing pursuant to KRS 18A.095 within five working days. The statute provides that the hearing is to be scheduled six working days after receipt of the employee's request. KRS 18A.095[5]. Your request for a thirty-day extension was denied, and the hearing began on June 26 and was continued, at your request, to July 20, more than thirty days after the notice of intent letter. The statute requires the agency to notify the employee of its decision no later than five working days after the pretermination hearing [KRS 18A.095[6]], and the Office issued its dismissal letter on XXX . There is no evidence to indicate that the timing of the letter was intended to avoid application of title I of the ADA, which was effective on XXX Your complaint also alleged that the Office of the Attorney General failed to make reasonable accommodations for your disability prior to your termination, as required by 28 C.F.R. {{ 41.53 and 42.511, and that the office space assigned to you was inferior in location, supplies, and working conditions to the space assigned to similarly situated employees without disabilities. We have determined that the Office had limited space available and that a number of other attorneys in your division were also assigned to space in separate buildings. Because, as stated in your complaint, you spent only about 10% of your time in your office because your responsibilities involved extensive travel, preference in space assignments was given to attorneys who spent more time in their offices. You did not allege that you objected to the space assigned to you or requested a different assignment. The Office of the Attorney General states that, in order to accommodate your disability, it provided you with a full time assistant who obtained books and material for you, read material to you, and drove for you. There is no indication that you found the services of this assistant unsatisfactory or requested additional accommodations. The office also accommodated your 01-00066

-4 The office of the Attorney General states that, in order to accommodate your disability, it provided you with a full time assistant who obtained books and material for you, read material to you, and drove for you. There is no indication that you found the services of this assistant unsatisfactory or requested additional accommodations. The Office also accommodated your disability by allowing you to work out of your home and private office. The Division called you on April 9, 1993 to summarize our proposed findings and ask whether you wished to submit additional rebuttal evidence. You submitted no response. Based on the foregoing information, we have concluded that the office of the Attorney General did not violate section 504 of the Rehabilitation Act of 1973, as amended. or title II of the ADA by terminating your employment on XXX or by failing to provide reasonable accommodation to you prior to your termination. This letter constitutes our Letter of Findings with respect to the allegations of discrimination in your administrative complaint. If you are dissatisfied with our determination, you may file a private complaint in the United States District Court under section 504 or title II of the ADA. You should be aware that a State or local government or recipient of Federal financial assistance may not threaten, intimidate, coerce, or engage in other discriminatory conduct against anyone who has either taken action or participated in an action to secure rights protected by the ADA. If at any time you feel you are being harassed or intimidated because of your dealings with the Department of Justice, you may file such a complaint with this office. We would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, 5 U.S.C. { 522, we may be required to release this letter and other correspondence and records related to your complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could

constitute an unwarranted invasion of your or other's privacy. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division

01-00067 T. 7/23/93 SBO:MF:SK:ca:jfh The Honorable Chris Gorman Attorney General commonwealth of Kentucky office of the Attorney General Frankfort, Kentucky 40601 Re: Complaint Number XXXX New Complaint Number XXXX Dear Attorney General Gorman: Please note the new complaint number assigned to the complaint filed against your Office by Mr. XXX . Please use the new number in all correspondence and other communications regarding this complaint. This letter constitutes the Department of Justice's Letter of Findings with respect to the complaint filed with our office by Mr. XXX against the Office of the Attorney General of the Commonwealth of Kentucky under title II of the Americans with Disabilities Act (ADA). Because the Office of the Attorney General receives Federal financial assistance from the Department of Justice, the complaint was also considered under section 504

of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of disability in programs or activities that receive Federal financial assistance. Our investigation under title II covered only events that occurred on or after the effective date of title II of the ADA, which was January 26, 1992. XXX complaint alleged that the Office of the Attorney General of the Commonwealth of Kentucky discriminated against him in employment because of his disability, in violation of subtitle A of 42 title II of the Americans Disabilities Act of 1990 [ADA], 42 U.S.C. {{12131 - 12134, which prohibits discrimination on the basis of disability by State and local governments. Specifically, the complainant alleges that the Office of the Attorney General failed to make reasonable

cc: Records CRS Chrono Friedlander Kaltenborn Breen FOIA udd:barron.gorman.XX

01-00068 -2accommodation for his disability (blindness) prior to XXX , and that his disability was a principal contributing factor, and may have been the decisive factor, in the decision to terminate his employment on XXX . Title II of the ADA prohibits employment discrimination against qualified individuals with disabilities on the basis of their disability in the services, programs, or activities of a State or local government. Our office enforces the requirements of title II of the ADA for activities relating to law enforcement and the administration of justice through investigation,

negotiation, and if necessary, referral for possible litigation. The Department's regulation implementing title II, 28 C.F.R. pt. 35, adopts the substantive standards contained in the Department of Justice's section 504 coordinating regulation for federally assisted programs, 28 C.F.R. pt. 41, as the standard for employment complaints under title II that are not also covered by title I of the ADA. 28 C.F.R. [ 35.140 [b] [2]. Because Mr. termination occurred prior to July 26, 1992, the effective date of title I of the ADA, the standards in part 41 apply to his complaint. As relevant here, part 41 provides that "[n]o qualified handicapped person shall on the basis of handicap be subjected to discrimination in employment ...." 28 C.F.R. s 41.52[a]. A qualified handicapped person in the employment context is ". . . a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question . . ." 28 C.F.R. 41.32. A public entity " ... shall make reasonable accommodation to the known physical ... limitations of an otherwise Qualified handicapped ... employee unless [the entity] can demonstrate that the accommodation would impose an undue hardship on the operation of its program." 28 C.F.R. 41.53. The requirements of the Department's regulation implementing section 504 for its federally assisted programs and activities are essentially the same as the title II requirements with respect to employment. 28 C.F.R. {{ 42.510 - 42.513. The Civil Rights Division has completed its investigation of Mr. XXX complaint. Our investigation revealed that his termination by the Office of the Attorney General was based an substantial evidence of misconduct, and was not related to his disability . Specifically, the Office of the Attorney General had evidence that Mr. XXX formed a close personal relationship with an individual who was a party in a disciplinary proceeding before the Kentucky Board of Medical Licensure while he was serving as the hearing officer in that proceeding, and that he continued to serve as hearing officer in that proceeding and issued rulings favorable to that individual without revealing the

01-00069

-3relationship to either the Board or the Office of the Attorney General. He admitted that he had numerous lengthy telephone conversations with the individual and took a weekend trip to New York with her. Please note that the Division does not endorse the decision of the office of the Attorney General and is not expressing an opinion on the merits of Mr. XXX case. we have, however, determined that those ex parte contacts with a party to a proceeding pending before him were the basis for his termination and that the asserted reasons for his discharge were not a pretext for discrimination on the basis of his disability. We have also determined that the procedures followed by the Office in this case were consistent with the Office's procedures for handling allegations of misconduct by attorneys employed by the Office and with the procedures followed in a similar case involving an individual who did not have a disability. Specifically, the charges were reviewed by the Deputy Attorney General, an investigation was conducted, and the Deputy Attorney General met with Mr. XXX and his attorney on two occasions to review the charges and give him an opportunity to respond. In addition, we have determined that the timing of Mr. XXX termination, on XXX , was consistent with the office's procedures. The Office received information concerning his involvement with this individual on May 5, 1992 and initiated an investigation. on June 8, 1992, he was interviewed with respect to the complaint by the Deputy Attorney General, with his attorney present. on June 17, he received a letter informing him that the Office intended to dismiss him and that he had the right to request a pretermination hearing pursuant to KRS 18A.095 within five working days. The statute provides that the hearing is to be scheduled six working days after receipt of the employee's request. KRS 18A.095[5]. Mr. XXX request for a thirty-day extension was denied, and the hearing began on June 26 and was continued, at his request, to July 20, more than thirty days after the notice of intent letter. The statute requires the agency to notify the employeeof its decision no later than five working days after the pretermination hearing (KRS 18A.095f(6)), and the Office issued

its dismissal letter on XXX . There is no evidence to indicate that the timing of the letter was intended to avoid application of title I of the ADA, which was effective on XXX. Mr. XXX complaint also alleged that the Office of the Attorney General failed to make reasonable accommodations for his disability prior to his termination, as required by 28 C.F.R. {{ 41.53 and 42.511, and that the office space assigned to him was inferior in location, supplies, and working conditions to the

01-00070 -4space assigned to similarly situated employees without disabilities. We have determined that the Office had limited space available and that a number of other attorneys in his division were also assigned to space in separate buildings. Because, as stated in the complaint, Mr. XXX spent only about 10% of his time in his office because his responsibilities involved extensive travel, preference in space assignments was given to attorneys who spent more time in their offices. Mr. XXX did not allege that he objected to the space assigned to him or requested a different assignment. The Office of the Attorney General states that, in order to accommodate his disability, it provided him with a full time assistant who obtained books and material for him, read material to him, and drove for him. There is no indication that he found the services of this assistant unsatisfactory or requested additional accommodations. The Office also accommodated his disability by allowing him to work out of his home and private office. The Division called Mr. XXX on April 9, 1993 to summarize our proposed findings and ask whether he wished to submit additional rebuttal evidence. He submitted no response.

Based on the foregoing information, we have concluded that the Office of the Attorney General did not violate section 504 of the Rehabilitation Act of 1973, as amended, or title II of the ADA by terminating Mr. XXX employment on XXX or by failing to provide reasonable accommodation to him prior to his termination. This letter constitutes our Letter of Findings with respect to the allegations of discrimination in the administrative complaint. If Mr. XXX is dissatisfied with our determination, he may file a private complaint in the United States District Court under section 504 or title II of the ADA. You should be aware that a State or local government or recipient of Federal financial assistance may not threaten, intimidate, coerce, or engage in other discriminatory conduct against anyone who has either taken action or participated in an action to secure rights protected by the ADA. If at any time you feel you are being harassed or intimidated because of your dealings with the Department of Justice, you may file such a complaint with this office. We would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, 5 U.S.C. § 522, we may be required to release this letter and other correspondence and records related to this complaint in response to a request from a third party. Should we receive such a request, we will

01-00071 -5safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could constitute an unwarranted invasion of privacy. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division

Enclosures 01-00072