11-1700-9528-2

ER 19941428

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS

 

Alison Moffat,                             Complainant, vs. Hennepin County,                              Respondent.

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DISPOSITION

 

            The above matter is pending before the Administrative Law Judge Barbara L. Neilson pursuant to a Notice of and Order for Hearing issued on April 4, 1995, and the Respondent’s Motion for Summary Judgment.  Pursuant to an Order issued by the Administrative Law Judge on November 21, 1995, the Respondent’s Motion for Summary Judgment was held in abeyance in order to allow the Complainant to complete discovery in this matter.  The Complainant filed a supplemental response to the Respondent’s Motion for Summary Judgment on January 11, 1996, and the Respondent filed a supplemental reply brief regarding the motion on February 15, 1996.  Oral argument was heard on March 18, 1996, at which time the record with respect to the motion closed.  The parties were informed in a letter dated April 19, 1996, that a written ruling would be issued denying the motion.

            Marcia S. Rowland, Attorney at Law, Standke, Greene & Greenstein, Ltd., 11717 Highway 7, Minnetonka, Minnesota 55345, appeared on behalf of the Complainant.  Janeen E. Rosas, Assistant County Attorney, Office of the Hennepin County Attorney, 2000 Government Center, Minneapolis, Minnesota 55487, appeared on behalf of the Respondent.

            Based upon all of the records, files, and proceedings herein, IT IS HEREBY ORDERED as follows:

            The Respondent’s Motion for Summary Judgment is DENIED.

Dated this _____ day of April, 1996.

                                                                    ___________________________________

                                                                     BARBARA L. NEILSON

                                                                     Administrative Law Judge

MEMORANDUM

            The Complainant, Alison Moffat, filed a discrimination charge against Hennepin County with the Minnesota Department of Human Rights on August 22, 1994.  On March 6, 1995, she requested that the matter be scheduled for hearing pursuant to Minn. Stat. § 363.071, subd. 1a (1994), and a Notice of and Order for Hearing was issued thereafter.  In her complaint in this matter, Ms. Moffat alleges that the County failed to reasonably accommodate her disability (dyslexia) in its testing process for a permanent account clerk position and that the County’s conduct constitutes disability discrimination in violation of the Minnesota Human Rights Act (“MHRA”).  The County has filed a Motion for Summary Judgment in which it argues that (1)   Ms. Moffat lacks standing to claim disability discrimination because she is not disabled within the meaning of the MHRA; (2)  the County in fact reasonably accommodated Ms. Moffat in the testing process; (3)  the persons selected for account clerk vacancies were demonstrably better able to perform the job; (4)  Ms. Moffat waived her standing to complain by rejecting the County’s offer of July 15, 1994, to allow her to re-test with all test items read to her; and (5)  Ms Moffat’s complaint about the August 20, 1993, testing process is untimely.

            Summary disposition is the administrative equivalent to summary judgment.  Minn. Rules pt. 1400.5500(K) (1995).  Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 66 (Minn. App. 1985); Minn. R. Civ. P. 56.03.  The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial courts in considering motions for summary disposition regarding contested cases.  See Minn. Rules pt. 1400.6600. 

            It is well established that, in order to successfully resist a motion for summary judgment, the non-moving party (here, the Complainant) must show that specific facts are in dispute which have a bearing on the outcome of the case.  Hunt v. IBM Mid America Employees Federal Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).  The existence of a genuine issue of material fact must be established by the non-moving party by substantial evidence; general averments are not enough to meet the non-moving party’s burden under Minn. R. Civ. P. 56.05.  Id.; Murphy v. Country House, Inc., 307 Minn. 344, 351-52, 240 N.W.2d 507, 512 (1976); Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1988).  Summary judgment may be entered against the party who has the burden of proof at the hearing if that party fails to make a sufficient showing of the existence of an essential element of its case after adequate time to complete discovery.  Id.  To meet this burden, the party must offer “significant probative evidence” tending to support its claims. A mere showing that there is some “metaphysical doubt” as to material facts does not meet this burden.  Id.  The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.  Carlisle, 437 N.W.2d at 715 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). 

            The non-moving party has the benefit of that view of the evidence which is most favorable to him or her, and all doubts and inferences must be resolved against the moving party.  See, e.g., Celotex, 477 U.S. at 325; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Greaton v. Enich, 185 N.W.2d 876, 878 (Minn. 1971); Thompson v. Campbell, 845 F.Supp. 665, 672 (D. Minn. 1994).  If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).  The U.S. Court of Appeals for the Eighth Circuit has cautioned that “[s]ummary judgments should be sparingly used [in cases alleging employment discrimination] and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion . . . .  All the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the non-moving party.”  Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1244 (8th Cir. 1991), relying upon Hillebrand v. M-Tron Industries, Inc., 827 F.2d 363, 3264 (8th Cir. 1987), cert. denied, 488 U.S. 1004 (1989), and Holley v. Sanyo Manufacturing, Inc., 771 F.2d 1161, 1164 (8th Cir. 1985).

I.  Factual Background

            Based upon the memoranda, affidavits, and depositions submitted in this matter, and construing the facts in a light most favorable to the Complainant, the Administrative Law Judge assumes solely for purposes of considering the Motion for Summary Disposition that the following facts are true.  Ms. Moffat, who is now a 24-year-old woman, attended kindergarten through fourth grade at Minneapolis Audubon and then transferred to the St. Louis Park School District for fifth through twelfth grade.  During third grade, Ms. Moffat’s teacher noticed that she was having problems with reading.  She was tested during fourth grade and received special education services throughout the remainder of her schooling.  The special education services she received during high school included assistance with studying, having tests and materials read to her, and being given extra time on examinations.  The special education teachers tried to get her books on tape as well.  Moffat Deposition at 7-16. 

            Ms. Moffat was employed by Hennepin County as a part-time “temporary” and “intermittent” employee in the accounting department of Hennepin County Medical Center from approximately January, 1990, to June, 1992, and from February, 1993, to October, 1994.  She assisted with filing, distributing and stamping in the mail, paying invoices, dealing with vendors, and preparing the business supply company invoices for payment.  Moffat Dep. at 34, 37.  She did not have any problems handling the job.  Id. at 35.  She was well-liked and got along well with her supervisors, co-workers, and other people with whom she had contact.  She was told that she performed her job well and that her supervisors wanted her to stay in the job permanently.  Id. at 31-34, 44, 62-64, 90; Moffat Aff., ¶ 3.  In her March, 1994, performance appraisal, she received “fully capable” ratings in five categories, “highly commendable” ratings in six categories, and an overall rating of “highly commendable.”

            Unlike temporary employees, permanent classified service positions in the County are filled through an open competitive hiring process which is governed by the Hennepin County Human Resource Rules.  Under these procedures, a notice of pending employment opportunities is posted that specifies a date by which applications must be received; applications are screened for minimum qualifications; applicants possessing the minimum qualifications are invited to compete in a testing process; and a rank-order list of eligible candidates is prepared and used to fill vacancies in the job class anywhere in the County for up to a year.  Supervisors who wish to fill vacancies request the list of eligible candidates from the Human Resources Department and make hiring decisions after interviewing the top people from the list.

            Ms. Moffat first applied for a permanent account clerk position with Hennepin County in August, 1993.  She was told that she would have to take a written examination before she could be considered for the position.  She informed the County’s Personnel Office on her application that she needed special testing accommodations to accommodate a disability and requested that the County provide her with a longer time to complete the test and have someone read parts of the test to her.  Nancy Skilling, a psychologist employed by the County’s Human Resources Department, sought additional information from Ricki Roberts, one of Ms. Moffat’s high school special education teachers, and received from Ms. Roberts a report prepared by James C. Crewe, a school psychologist, regarding a WAIS-R Analysis that he had administered to Ms. Moffat on February 2, 1989.  Skilling Aff., ¶ 12.  In this report, Dr. Crewe noted the 27-point difference between Ms. Moffat’s verbal scale I.Q. and her performance scale I.Q. and stated that “the following clinical hypotheses are linked to this type of verbal performance discrepancy: A.  Performance skills better developed than verbal skills.  B.  Visual nonverbal mode better developed than auditory processing mode.  C.  Possible difficulty with reading.  D.  Possible language deficit.  E.  Possible limitations in auditory conceptual skills.”  See Ex. 7 appended to Skilling Affidavit.

            Ms. Skilling granted Ms. Moffat’s request for extra time and permitted her to take the test separately.  She required the person supervising Ms. Moffat’s test to read her the instructions for each section of the test.  Certain of these instructions were also read to other individuals taking the test.  In addition, those taking the test could obtain sample tests setting forth the instructions in advance of the test date.  Ms. Skilling did not agree that the test items themselves should be read to Ms. Moffat.  She did not believe that this would be a reasonable testing accommodation based on her view that the written test examines the applicant’s ability to interpret and process written material by proofing, alphabetizing, etc., and her conclusion that reading the items would compromise the nature of the test.  Skilling Aff., ¶ 27.  The test was taken by 144 people, including Ms. Moffat.  Ms. Moffat took the test on or before August 20, 1993.  The 1993 test included sections relating to alphabetical filing, numerical proofing, name and number comparison, math computation, and bookkeeping terminology.  A rank-order list was activated on August 20, 1993.  Ms. Moffat passed the test and was placed on the eligible list with 96 others who passed.  She did not score high enough to be one of the top finalists for the available position in the accounting department of the Hennepin County Medical Center.

            Ms. Moffat was not aware of the County’s “640 Hour Program” at the time of her 1993 application.  This program is an alternative selection procedure applied by the County in instances where special examination accommodations cannot be made due to the individual’s disability.  The 640 Hour Program permits an on-the-job trial period of up to 640 hours to be substituted for the usual examination.  During the trial period, the applicant’s ability to perform the work is evaluated.  If the applicant is able to perform the work, the applicant’s name is certified to the appointing authority and the applicant may be hired and begin his or her probationary period.  Hennepin County Human Resources Rules, § 6.8(b). The County has placed several individuals through the 640 Hour Program in the past.  These individuals have been blind, pre-lingually deaf, or treated for paranoid schizophrenia or other severe and persistent mental illnesses.  Skilling Aff., ¶ 16; McMurray Aff., ¶ 6.

            Ms. Moffat again applied for a permanent position as an account clerk in approximately February of 1994, and requested that she be given extended time and a reader.  The County offered the same accommodations that it had offered previously.  Ms. Moffat did not report for the examination in March, 1994.  The account clerk examination was taken by 173 other people that day.  Shortly thereafter, Ms. Moffat’s supervisor requested that she be allowed to test for the job under the 640 Hour Program. Ms. Skilling determined that Ms. Moffat was not a candidate for the 640 Hour Program based upon her determination that Ms. Moffat’s alleged impairment was not severe or unamenable to testing accommodation and her view that Ms. Moffat had been accommodated in the testing process and had performed well with that accommodation.  Skilling Aff., ¶ 17.  Ms. Skilling then contacted offered Ms. Moffat and offered her an opportunity to take the test.  Ms. Moffat took the test on April 19, 1994.  She was granted double time and took the test in a private room. The instructions for each part of the test were read to Ms. Moffat, but not the test items themselves.  The test given, the Office Specialist Battery,  was different than the test given in 1993.  It included four twenty-item parts: alphabetical sorting, name and number comparison, arithmetic, and reading comprehension.  Id., ¶ 7.   Ms. Moffat received a score of 70 out of 80 possible points on this test.  The passing score was 55, but Ms. Moffat would have had to score at least 75 to advance to the next step of the process.  Ms. Moffat thus did not obtain a sufficiently high score to be one of the top finalists for the available positions.  Fifty-two applicants had scores of 75 or better, and were invited to proceed to the next step in the testing process, which was the PDI Employment Inventory.  Ms. Moffat was allowed to take the PDI Employment Inventory at the same time that she took the Office Specialist Battery. Ms. Moffat’s score on the initial test was not sufficiently high that she otherwise would have been invited to take the PDI test.  Id., ¶¶ 23-24.

            Ms. Moffat retained her current attorney, who sent counsel for the County a letter in June, 1994, explaining the Complainant’s view that the County had discriminated against her on the basis of disability and offering to settle the matter.  The County’s attorney sent back a letter dated July 15, 1994, in which the County agreed to let Ms. Moffat re-test with all test items read to her.  The County offered to substitute Ms. Moffat’s new score for her old score and adjust her position on the list. Ms. Moffat rejected this offer.  The County also indicated in the letter that administrators at Hennepin County Medical Center had decided to offer the permanent account clerk position in Ms. Moffat’s division to an in-house transfer candidate from a parallel job class.

            Prior to obtaining the temporary account clerk position with Hennepin County, while she was still in high school, Ms. Moffat held a job at Fuddruckers, where she started out bussing tables, then became a bus supervisor, and the bakery and bus supervisor and trainer.  That position involved just a little reading for the instructions on how to make bakery items.  She also worked at Contempo Casuals clothing store, where she had cashier and stock duties.  The position at Contempo Casuals only rarely included any paperwork.  She did not have difficulty preparing shipping receipts, credit vouchers, or sales receipts since she could simply copy information from another source.  Moffat Dep. 26-29, 38. After resigning from her County account clerk position in June, 1992, she moved to Washington, where she assisted a friend with painting and remodeling tasks and also worked in a store and gift shop called the Pacific Science Center handling cashier, stock, and some paperwork duties (shipping and taking telephone orders). She performed well in the latter position.  Id. at 38-41.  After she moved back to Minnesota, she worked at Pizza Hut delivering pizzas and did baby-sitting, then returned to the account clerk position with the County.  Id. at 42-43.

II. Discussion

            The Minnesota Human Rights Act (“MHRA”) provides in pertinent part that it is an unfair employment practice for an employer “to refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment” because of disability or “to discriminate against a person with respect to hiring, . . . terms, . . . conditions, . . . or privileges of employment” because of disability, unless based on a bona fide occupational qualification (“BFOQ”).  Minn. Stat. § 363.03, subd. 1(2) (1994).  Minn. Stat. § 363.01, subd. 13 (1994), defines disability as “any condition or characteristic that renders a person a disabled person.  A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.”  The MHRA originally required that the impairment “substantially” limit one or more life activities.  This requirement corresponded to the federal standard set forth in the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 706(7)(B), and the Americans with Disabilities Act, 42 U.S.C. § 12102(2).  The MHRA was amended in 1989 to specify that the impairment must “materially” limit one or more life activities, thereby substituting a less stringent standard.  Sigurdson v. Carl Bolander & Sons, Inc., 532 N.W.2d 225, 228 & n.3 (Minn. 1995).  The MHRA defines “qualified disabled person” to mean, “with respect to employment, a disabled person who, with reasonable accommodation, can perform the essential functions required of all applicants for the job in question” and further specifies that, where the respondent claims that the person is not a qualified disabled person, “the burden is on the respondent to prove that it was reasonable to conclude the disabled person, with reasonable accommodation, could not have met the requirements of the job or that the selected person was demonstrably better able to perform the job.”   Minn. Stat. §363.01, subd. 35 (1995 Supp.).

            The MHRA further provides that it is an unfair employment practice (unless based upon a BFOQ) for employers “with a number of part-time or full-time employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year equal to or greater than 25 effective July 1, 1992, and equal to or greater than 15 effective July 1, 1994, . . . not to make reasonable accommodation to the known disability of a qualified disabled person or job applicant unless the employer . . . can demonstrate that the accommodation would impose an undue hardship on the business . . . .  “  Minn. Stat. § 363.03, subd. 1(6) (1994).  The Act further defines “reasonable accommodation” to mean “steps which must be taken to accommodate the known physical or mental limitations of a qualified disabled person” and specifies various factors to be considered in assessing whether an accommodation would impose an undue hardship on the operation of a business, including the size of the business, the type of operation, the nature and cost of the accommodation, the financial resources of the business, and documented good faith efforts to explore less restrictive or less expensive alternatives.  Id.  The MHRA expressly provides that it is not an unfair employment practice for an employer “to administer preemployment tests, provided that the tests (a)  measure only essential job-related abilities, (b)  are required of all applicants for the same position regardless of disability except for tests authorized under chapter 176 [relating to workers compensation claims], and (c)  accurately measure the applicant’s aptitude, achievement level, or whatever factors they purport to measure rather than reflecting the applicant’s impaired sensory, manual, or speaking skills except when those skills are the factors that the tests purport to measure . . . .”  Minn. Stat. § 363.02, subd. 1(9)(iii) (1994).                                                                            

            Minnesota courts have often relied upon case law developed in discrimination cases arising under federal law in interpreting the MHRA.  See, e.g., Continental Can Co. v. State, 297 N.W.2d 241, 246 (Minn. 1980); Danz v. Jones, 263 N.W.2d 395, 398-99 (Minn. 1978).  Because the language used to define a “handicapped individual” in section 504 of the Rehabilitation Act is nearly identical to the definition contained in the MHRA, Minnesota courts have held that it is appropriate to look to interpretations of the Rehabilitation Act for guidance in construing the definition of “disabled person” and “qualified disabled person” under the MHRA.  See State by Cooper v. Hennepin County, 441 N.W.2d 106, 110 (Minn. 1989); Fahey v. Avnet, Inc., 525 N.W.2d 568, 573 (Minn. App. 1994).  Since Congress intended that interpretations arising under the Rehabilitation Act be applied in deciding what constitutes a “disability” as used in the ADA (see Senate Report at 21; House Labor Report at 50; House Judiciary Report at 27) and the guidelines issued by the Equal Employment Opportunity Commission under the ADA rely heavily upon the definitions developed under the Rehabilitation Act (compare 29 C.F.R. Part 1630 with 29 C.F.R. Part 32), it is equally appropriate to rely upon interpretations of the ADA in construing provisions of the MHRA.

            Relevant Minnesota case law establishes that plaintiffs in employment discrimination cases arising under the MHRA may prove their case either by presenting direct evidence of discriminatory intent or by presenting circumstantial evidence in accordance with the analysis first set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).  Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 & n. 4 (Minn. 1992); Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986); Danz v. Jones, 263 N.W.2d at 399.  The approach set forth in McDonnell Douglas consists of a three-part analysis which first requires the complainant to establish a prima facie case of disparate treatment based upon a statutorily-prohibited discriminatory factor.  Once a prima facie case is established, a presumption arises that the respondent unlawfully discriminated against the complainant. The burden of producing evidence then shifts to the respondent, who is required to articulate a legitimate, nondiscriminatory reason for its treatment of the complainant.   If the respondent establishes a legitimate, nondiscriminatory reason, the burden of production shifts back to the complainant to demonstrate the respondent’s claimed reasons were pretextual.  McDonnell Douglas, 411 U.S. at 802-04; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 623 (Minn. 1989); Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983).  The burden of proof remains at all times with the complainant.  Fisher Nut Co. v. Lewis ex rel. Garcia, 320 N.W.2d 731 (Minn. 1982); Lamb v. Village of Bagley, 310 N.W.2d 508, 510 (Minn. 1981).  It is clear that the three-part McDonnell Douglas analysis is to be applied in deciding summary judgment motions involving disparate treatment claims under the MHRA where, as here, there is no direct evidence of discriminatory intent.  Albertson v. FMC Corp., 437 N.W.2d 113, 115 (Minn. App. 1989), citing Sigurdson v. Isanti County, 386 N.W.2d 715, 719-22; see also Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988); Shea v. Hanna Mining Co., 397 N.W.2d 362, 368 (Minn. App. 1986).

            The elements of a prima facie case of discrimination vary depending upon the type of discrimination alleged, and must be tailored to fit the particular circumstances.  In order to establish a prima facie case of disability discrimination based upon an alleged failure to reasonably accommodate, the Complainant must establish that: (1)  the employer employs the requisite number of employees as set forth in the MHRA; (2)  the employee is a qualified disabled person; (3)  the disability is known to the employer; and (4)  the employer failed to make reasonable accommodation to the disability.  McCarthy v. Redeemer Residence, Inc., C9-87-1946 (Minn. App. April 5, 1988), slip op. at 4 (attached to Respondent’s Memorandum in Support of Motion for Summary Judgment).  It appears that there is no dispute that the County employed more than 25 employees during 1993 and more than 15 employees since July of 1994 as required by the MHRA and that Ms. Moffat made her disability known to the County, thereby satisfying the first and third elements of the prima facie case requirement.  The County contends in its Motion for Summary Judgment, however, that Ms. Moffat is not a “qualified disabled person” within the meaning of the MHRA and that the County in fact did make reasonable accommodation to her disability, and thus argues that the Complainant cannot establish the second and fourth elements of the prima facie case requirement.  The County also asserts that Ms. Moffat cannot assert any actionable claim with respect to the alleged failure to accommodate her when she took the 1993 account clerk test.  These points will be discussed below.

            A. Qualified Disabled Person

            The County points out that an impairment does not amount to a disability unless its severity is such that it results in a material limitation of one or more major life activities.  This requirement is clearly reflected in the definition of “disability” which is set forth in MHRA and quoted above.  See Minn. Stat. § 363.01, subd. 13 (1994).  The County argues that Ms. Moffat’s test scores are not sufficiently poor to qualify as an “impairment” and asserts that there is no evidence that her performance on any test was caused by a learning disability rather than other factors such as lack of motivation, cautiousness or anxiety. The County contends that Ms. Moffat’s asserted disability has not materially limited her major life functions and that she has not provided any evidence of material limitations on her daily activities resulting from her alleged dyslexia.  The County also asserts that the psychological report prepared by Nira Scherz-Busch with respect to Ms. Moffat is inconsistent with Dr. Crewe’s earlier findings and should be disregarded.

            The MHRA does not define what is meant by the phrase “materially limits a major life activity.”  The guidelines promulgated by the EEOC under the ADA and the Appendix following the guidelines do, however, provide guidance concerning the interpretation of “major life activity” and the more stringent federal standard requiring that the impairment “substantially limit” one or more major life activities.  Guidelines promulgated by the Equal Employment Opportunity Commission implementing the ADA define “major life activities” as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R § 1630.2(I).   Pursuant to the EEOC guidelines, an impairment is viewed as substantially limiting major life activities if it “significantly restrict[s] . . . the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”  29 C.F.R. § 1630.2(j).  The EEOC definition of “major life activity” is identical to that contained in a regulation promulgated by the Department of Health and Human Services which was considered and accorded deference by the U.S. Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987), a case arising under the Rehabilitation Act.  See 45 C.F.R. 84.3(j)(2)(ii).  Regulations promulgated by the U.S. Department of Labor implementing the Rehabilitation Act define “major life activities” in the same way, with the additional indication that “receiving education or vocational training” is also a “major life activity.”  29 C.F.R. § 32.3.

            It is evident that a learning disability such as dyslexia may constitute an impairment for purposes of the MHRA and the related federal laws.  For example, the regulations promulgated by the U.S. Department of Labor implementing the Rehabilitation Act of 1973 recognize that “physical or mental impairment” includes “[a]ny mental or psychological disorder, such as . . . specific learning disabilities.”  29 C.F.R. § 32.3.  In addition, dyslexia is recognized as an impairment  in the Appendix to the EEOC’s ADA guidelines.  The EEOC specifically notes that “an individual who is unable to read because of dyslexia would be an individual with a disability because dyslexia, a learning disability, is an impairment.” 29 C.F.R. § 1630.2(j) (Appendix).  The Appendix to the guidelines further notes that persons suffering from dyslexia may, under certain circumstances, be entitled to have accommodations made with respect to preemployment testing: 

            [I]t would be unlawful to administer a written employment test to an individual who has informed the employer, prior to the administration of the test, that he is disabled with dyslexia and unable to read.  In such a case, as a reasonable accommodation and in accordance with this provision, an alternative oral test should be administered to that individual. . . . This provision does not apply to employment tests that require the use of sensory, manual, or speaking skills where the tests are intended to measure those skills.  Thus, an employer could require that an applicant with dyslexia take a written test for a particular position if the ability to read is the skill the test is designed to measure. . . .  However, the results of such a test could not be used to exclude an individual with a disability unless the skill was necessary to perform an essential function of the position and no reasonable accommodation was available to enable the individual to perform that function, or the necessary accommodation would impose an undue hardship.

29 C.F.R. § 1630.11 (Appendix).

            It is also evident that “major life functions” are not limited simply to those delineated in the rules quoted above.  The EEOC specifically notes that the list set forth in its ADA guidelines is not intended to be exhaustive.  29 C.F.R. Part 1630.2(i)  (Appendix). Courts applying the provisions of the ADA and the Rehabilitation Act have not viewed the coverage of disability law  to be limited to the enumerated life activities.  For example, in Pritchard v. Southern County Services, 9 ADD 1069, 4 AD Cas. 465 (N.D. Ala. 1995), the plaintiff alleged that her depression substantially limited her ability to function, sleep, concentrate, and communicate.  The court was unwilling to hold as a matter of law that such activities would not be included in the nonexhaustive list of “major life activities” set forth in 29 C.F.R. § 1630.2(i).  Even more significantly, the court in Pridemore v. Rural Legal Aid Society of West Central Ohio, 625 F. Supp. 1180, 1184 (S.D. Ohio 1985), concluded in a case arising under the Rehabilitation Act that reading and speaking were major life activities.  The plaintiff in that case alleged that his mild cerebral palsy limited his ability to read and to make sustained eye contact and cause speech defects.  The plaintiff had been diagnosed as having a “borderline” case of cerebral palsy which could be detected only with the use of sophisticated diagnostic medical equipment.  The court concluded that the employer was entitled to summary judgment because the level of limitation was not determined to be substantial and the plaintiff had not established that members of the committee interviewing him could have known that he suffered from cerebral palsy.

            Based upon all of the affidavits, depositions, and reports submitted by the parties, the Administrative Law Judge concludes that genuine issues of material fact remain for hearing regarding whether Ms. Moffat suffers from an impairment which materially limits her major life activities of learning and reading.  Dr. Crewe’s testing results in essence reflect that Ms. Moffat ‘s verbal scale I.Q. was more than two standard deviations below her performance scale I.Q.  Winnelle Carpenter, who holds a masters degree in special education, including learning disabilities, and a B.S. degree in special education, provided an affidavit in this matter stating that, based upon her review of the records in this matter, Ms. Moffat has a significant learning disability.  Ms. Carpenter stressed that Ms. Moffat would have had to meet rigid criteria within her school district in order to qualify for special education services under the Individuals with Disabilities Education Act (“IDEA”), and indicated that Ms. Moffat’s dyslexia is a language-based disability that affects reading, writing, and spelling.  She also holds the opinion that the County’s test in fact measured Ms. Moffat’s disability rather than her abilities on the job.  Ricki Roberts, who was a special education teacher in the St. Louis Park School District for approximately 17 years, has a specialty in learning disabilities, and was Ms. Moffat’s case manager, testified that Ms. Moffat has dyslexia and an overlapping spelling disability and that she received level 2 special education services during high school.  Level 2 involves indirect service, i.e., a special education teacher sees the student 30 minutes a week.  Roberts Dep. at 8, 10, 41, 45, 51, 53.  During high school, Ms. Moffat had some tests read to her and was given extra time to complete them.  Id. at 51, 56-57, 65-68.  Ms. Roberts explained that students are identified for special education after a referral is made and an assessment is done through an I.Q. test in conjunction with a battery of other tests measuring the student’s skill levels in a number of areas.  If a student’s skill level is at least two standard deviations below his or her intelligence level, the student meets special education criteria under state guidelines.  Id. at 15-16.  She indicated that dyslexia is reflected when a person of above average intelligence as tested on an I.Q. test has a severe discrepancy in their reading, making reading and spelling extremely difficult.  Id. at 24-25.

            In addition, Nira Scherz-Busch concluded based upon her recent examination of Ms. Moffat that Ms. Moffat’s “level of intellectual functioning, her cognitive profile as well as her academic profile confirm the previous diagnoses which have been made since Alison was [in] the fourth grade of the fact that she has severe and even profound developmental reading and written language disorders known as dyslexia and dysgraphia.”  Report at 12.  She was also found to have mild to moderate dysnomia.  Ms. Moffat’s scores on the Woodcock-Johnson Psychoeducational Battery - Revised placed her in the fourth percentile in her age group for broad reading (fifth grade level); the fifth percentile for broad written language, basic writing skills, and basic reading skills (fifth grade level); and the seventh percentile for reading comprehension (the sixth grade level), despite her full scale I.Q. of 121.  Her broad reading and broad written language scores were more than two standard deviations from the expected score that she would have in view of her “ability.”  Id. at 2-5.  Ms. Scherz Busch recommended that assistance provided to Ms. Moffat in testing for jobs include actual on-the-job performance, giving tests to her orally and/or with the assistance of a “reader” or a “scribe,” and ensuring that tests are conducted in an individualized, relaxed and quiet setting.  Id. at 16. 

            Ms. Scherz-Busch apparently holds a master’s degree and a Wisconsin license for the private practice of school psychology and acts under the supervision of Glen O. Sallows, Ph.D., Clinical Psychologist.  The County asserts that her report is inconsistent with earlier reports pertaining to Ms. Moffat and urges that it be disregarded.  Ms. Scherz-Busch’s report undermines the County’s argument by noting that Ms. Moffat’s “level of intellectual functioning, as measured by this administration of the WAIS-R, is quite similar to the results obtained in the previous examination.”  Report at 9.  Several of the age-scaled scores reported in Dr. Crewe’s report and in Ms. Scherz-Busch’s report are the same or within one or two digits of each other.  In only three of the eleven subtests was there a variation of three digits or more (on the digit span subtest, there was a six-digit difference; on the picture completion subtest, there was a four digit difference; and, on the picture arrangement subtest, there was a three-digit difference).  In any event, it would be inappropriate for the Administrative Law Judge to determine that Ms. Scherz-Busch’s report should be disregarded in the context of a motion for summary judgment, where it is not possible to gauge the credibility of witnesses or learn more about test administration procedures and the reliability and validity of the tests given.

            The County argues that Ms. Moffat was unable to articulate in specific detail the impact her alleged reading disability has had on her daily life and major life activities and asserts that this “further supports the conclusion that she is mildly learning disabled, at best.”  County’s Supplemental Reply Memorandum at 5.  The County emphasizes that Ms. Moffat has a driver’s license and is able to read street signs, find her way around the city, and read newspaper articles that are of interest to her.  The County further stresses that Ms. Moffat has not been excluded from any schooling because of her disability.  Other testimony by Ms. Moffat does, however, support the Complainant’s argument that she suffers from an impairment materially limiting major life functions within the meaning of the MHRA.  For example, Ms. Moffat testified that her ability to read the newspaper “depends.”  She stated that she can read a lot better on some occasions than on other occasions and that, when she has difficulty reading, she gets angry at herself, becomes frustrated because she can’t read, and gets headaches. She memorizes words rather than sounding them out, and sometimes gets stuck on words.  The length of the material affects her ability to read it, and she becomes frustrated when she reads books or articles that are more than a page long.  Moffat Dep. at 18-20, 25.  In her affidavit provided in connection with this motion, Ms. Moffat indicated as follows:

I was diagnosed in grade school as having a learning disability/dyslexia which is a reading/language based disability.  It affects my reading ability every time I attempt to read.  The longer the written material is, the more difficult it is for me to comprehend it’s [sic] meaning.  My learning disability/dyslexia affects me every day of my life since reading is an essential part of our society.

Moffat Aff., ¶ 7.  In light of this other testimony, Ms. Moffat’s statement during her deposition that she did not know how to put in words how her reading disability affects her day-to-day life (Moffat Dep. at 93-94) cannot fairly be construed as an admission that her alleged disability has no effect on her daily activities.  A genuine issue of material fact remains for hearing with respect to the extent of the impact of Ms. Moffat’s alleged learning disability on her daily life and major life activities.

            Motions for summary judgment have been denied in two analogous cases involving plaintiffs with dyslexia.  In Dipompo v. West Point Military Academy, 708 F. Supp. 540 (S.D.N.Y. 1989), the plaintiff suffered from dyslexia which he asserted caused him to read at a first grade level when calm and caused him to be illiterate when under stress.  Although he had over 1,000 hours of experience as a volunteer fire fighter, his application for fire fighter position at the academy was rejected due to his failure to read at a 12th grade level.  The plaintiff sued, alleging a violation of the Rehabilitation Act of 1973.  The parties agreed that the plaintiff had shown that his dyslexia rendered him a handicapped person within the meaning of the Rehabilitation Act, but disputed whether the plaintiff could show other elements of a prima facie case of discrimination.  The court denied cross motions for summary judgment and found that issues of fact existed as to the applicability of the plaintiff’s 1,000 hours of experience and whether the ability to read is an essential requirement for the job.  In addition, in Stutts v. Freeman, 694 F.2d 666 (11th Cir. 1983), the plaintiff was diagnosed as having dyslexia, was incapable of reading beyond the most elementary level, and was unable to perform well on written tests. The plaintiff applied for an opening with the Tennessee Valley Authority in an apprenticeship training program to become a heavy equipment operator.  The TVA’s attempts to persuade the testing service to administer an oral test were unsuccessful.  The plaintiff’s application was denied on the basis of a low score on a written general aptitude test battery used by the TVA to predict the probability of an applicant’s success in the training program.  The plaintiff filed suit under the Rehabilitation Act.  The employer filed a motion for summary judgment, which was granted by the trial court.  The Eleventh Circuit reversed, finding that there was “considerable evidence supporting Mr. Stutts’ contention that he is fully capable of performing well as a heavy equipment operator and we find a genuine issue as to whether or not he could successfully complete the training program, either with the help of a reader or by other means.”  Id. at 668-69.  The Court did not hold that the plaintiff had to be admitted into the training program or given a position as a heavy equipment operator, but merely held “that when TVA uses a test which cannot and does not accurately reflect the abilities of a handicapped person, as a matter of law they must do more to accommodate that individual than TVA has done in regard to Mr. Stutts.” Id. at 669.  It is proper to take the same approach and deny summary judgment in the case at bar.

            The County emphasizes that Ms. Moffat admitted during her deposition that she has never been excluded from any job other than the County account clerk job due to her disability and urges that summary judgment be granted on this basis.  Three Minnesota cases have considered whether an individual who shows only that he or she failed to qualify for a single job based upon an alleged impairment have shown the requisite impact upon major life functions so as to meet the MHRA’s definition of a “qualified disabled person.”  In State by Cooper v. Hennepin County, 441 N.W.2d 106 (Minn. 1989), a man who applied for the position of a detention deputy with Hennepin County was not hired after his pre-employment physical examination revealed that he had high tone hearing loss and that he did not meet the County’s standard requiring uncorrected distance vision of 20/100 in each eye.  The parties did not dispute the fact that the applicant, Allan Tervo, had physical impairments but disputed whether those impairments substantially limited one or more of his major life activities or whether he was regarded as having such an impairment.  The Supreme Court concluded that Mr. Tervo did not meet the “substantially limited” standard then set forth in the MHRA.  The Court noted that he had only been rejected for one specific job and that he was qualified to obtain many other jobs in the law enforcement field.  The Court also concluded that the County did not regard Mr. Tervo as having an impairment due to his myopia. 

            In Sigurdson v. Carl Bolander and Sons, Co., 532 N.W.2d 225 (Minn. 1995), a 52-year-old man who had diabetes applied for a truck mechanic position.  During the interview, he volunteered that he was diabetic.  He was not hired, and later sued alleging disability and age discrimination.  The trial court granted summary judgment to the employer on both claims, and the Minnesota Court of Appeals reversed on the disability claim.  The Minnesota Supreme Court reinstated summary judgment in favor of the employer on both claims.  The Court found that the evidence showed that the plaintiff’s ability to work had “not been greatly impeded by his diabetes since he has been able to obtain and retain employment for most of his adult years.”  The Court determined that his diabetes “has not materially limited his ability to obtain and retain employment, and thus, his failure to obtain one job does not render him disabled.”  Id. at 229.  The Court also emphasized that the employer determined that the plaintiff was not qualified for the position because he had not received any formal training, he was not up to date on current products, and he had not been working in the field since 1988.  Finally, in Fahey v. Avnet, Inc., 525 N.W.2d 568 (Minn. App. 1994), the Court of Appeals held that a former employee who suffered from a condition limiting her typing ability did not suffer from an impairment that materially limited a major life activity so as to render her disabled within the meaning of the MHRA.  The record showed that the plaintiff was medically precluded from typing but was able to perform a variety of other tasks.  After discussing the Supreme Court’s decision in the Hennepin County case, the Court of Appeals ruled that the plaintiff’s failure to qualify for a single job did not constitute being limited in a major life activity.

            The Administrative Law Judge determines that these cases are distinguishable on their face from the present case.  Unlike the employees in the above cases, Ms. Moffat complains of a failure to make reasonable accommodation in testing for a job that her evidence indicates she was already performing in a satisfactory or more than satisfactory manner.  The MHRA expressly requires that preemployment tests measure only essential job-related abilities and accurately measure the applicant’s aptitude rather than reflecting the applicant’s impairment.  Minn. Stat. § 363.02, subd. 1(9)(iii) (1994).  The EEOC ADA guidelines echo this requirement by specifying that it is unlawful for covered employers to “use . . . employment tests . . . that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.”  29 C.F.R. § 1630.10.  In addition, 29 C.F.R. § 1630.11 requires employers “to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).”  The relevant type of impairment shown in a case alleging failure to accommodate in a preemployment testing situation is an impairment affecting performance on the test, such as learning or reading, and not necessarily an impairment affecting ability to work, as was required in the failure-to-hire cases discussed above.

            There is a genuine issue of material fact remaining for hearing regarding whether the test used by the County in fact measured essential job-related abilities.  The County provided the affidavit of its industrial psychologist indicating that the examination tested for necessary job-related abilities and asserted that the reading skills measured in the test were essential to performance of the account clerk job.  The Complainant presented evidence that the test merely reflected her dyslexia and not essential job-related abilities, supported by evidence that she was able to perform the actual duties of the account clerk job well despite her difficulties with portions of the test.  Moreover, Ms. Moffat has presented evidence that raises a genuine issue of fact regarding whether she has a disability which materially limits her ability to learn and read.  As discussed above, learning is expressly identified as a “major life function” in regulations implementing the Rehabilitation Act and the ADA, and reading was recognized as a “major life function” in Pridemore v. Rural Legal Aid Society of West Central Ohio, 625 F. Supp. 1180, 1184 (S.D. Ohio 1985).  Ms. Moffat’s claim thus is not properly viewed as alleging that her disability materially limited her ability to work, as concluded by the courts considering the Hennepin County, Sigurdson, and Fahey cases, and should not be held to the narrow standards established in those cases.*

            The County also contends that Ms. Moffat was not a “qualified disabled person” because the eight people who were in fact selected for account clerk positions in 1993 and 1994 were demonstrably better able to perform the job.  In this regard, the County apparently contends that these candidates were better able to perform the job merely because they had post-high school education, college degrees, or additional years of experience.  There has not been any convincing showing by the County that Ms. Moffat failed to meet the minimum requirements of the job or that persons with additional schooling or years of experience were somehow inherently better qualified than Ms. Moffat to perform this job.  The County is not entitled to judgment as a matter of law based on this argument.

            B.  Reasonable Accommodation

            The County argues that Ms. Moffat waived her standing to complain that she was not accommodated when she rejected the County’s offer in July, 1994, to read the test items to her.  Minn. Stat. §  363.03, subd. 1(6) (1994), provides that a person will not be considered a qualified individual with a disability if he or she “rejects a reasonable accommodation . . . that is necessary to enable the individual to perform.” There is not a sufficient basis in the present case to find that the Complainant waived her claim when she did not accept the County’s offer.  That offer was made only after Ms. Moffat’s attorney informed the County of the possibility that Ms. Moffat would file a discrimination charge and made a settlement offer.  The test had been administered several months before and the list of eligibles had been in place for some time prior to the offer. Moreover, the Complainant’s primary request in 1994 was that she be placed through the 640 Hour Program and thereby avoid having to take the test at all.  This program is available pursuant to County policy in situations where “special examination accommodations . . . cannot be made due to the handicap . . . .”  There is a disputed issue of genuine fact regarding whether the 640 Hour Program was a reasonable accommodation for Ms. Moffat and whether reading the test items was a reasonable accommodation.  The entry of summary judgment for the County based on this argument thus is not appropriate.   

            C.  Timeliness of Complaint regarding 1993 Test

            The County contends that, in any event, Ms. Moffat’s claim regarding the 1993 testing process is untimely and must be dismissed.  Minn. Stat. § 363.06, subd. 3 (1994), requires that charges of employment discrimination be brought “within one year after the occurrence” of the alleged unfair discriminatory practice.  Ms. Moffat took the written account clerk test on or before August 20, 1993, and received notice of her test score and rank on the list on August 20, 1993.  Ms. Moffat did not file her discrimination charge until August 22, 1994. However, August 20 and 21, 1994, fell on a Saturday and a Sunday.  As a result, the limitations period did not expire until Monday, August 22, 1994.  See Minn. Stat. § 645.15 (1994) (“[w]here the performance or doing of any act . . . is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time . . . shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time.  When the last day of the period falls on Saturday, Sunday or a legal holiday, that day shall be omitted from the computation”).

            Accordingly, the County’s Motion for Summary Judgment is denied.

B.L.N.