$05:Civil Money Penalty
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Department of Health and Human Services,
- v. -
Rosebud Sioux Tribe, Respondent.
DATE: July 14, 1994
Docket No. 93-504-1
Decision No. CR322
DECISION
This compliance proceeding came before me pursuant to the November
23, 1992 Answer filed by Respondent, the Rosebud Sioux Tribe
(Tribe), to contest the allegations contained in the "Notice of
Opportunity for a Hearing" (Notice) issued by the United States
Department of Health and Human Services (HHS) on November 6, 1992.
HHS alleged in its Notice that the Tribe received various federal
domestic aid grants administered by HHS. As a condition for
receiving said grants, the Tribe allegedly gave HHS assurances that
it would comply with section 504 of the Rehabilitation Act of 1973,
Pub. L. No. 93-112, as amended by Pub. L. No. 93-516 and 95-602, 29
U.S.C. 794 (Rehabilitation Act), and the agency's implementing
regulations. HHS charged in its Notice that the Tribe violated the
Act, HHS' implementing regulations, and the Tribe's assurance to
HHS (Assurance of Compliance) by discriminating against William
Bettelyoun, a tribal employee, solely on the basis of his handicap
(i.e., his infection with the human immunodeficiency virus (HIV),
a virus that causes Acquired Immune Deficiency Syndrome (AIDS)).
This discrimination was alleged to have begun some time after his
hire in June 1988 and continued until August 25, 1988, when Mr.
Bettelyoun resigned from his employment due to an allegedly hostile
work environment. HHS contended also that Mr. Bettelyoun was a
qualified handicapped person as defined in 45 C.F.R. 84.3(k) and
that the Tribe refused to remedy its illegal actions by providing
back pay to Mr. Bettelyoun and by reinstating Mr. Bettelyoun to the
job from which he had resigned, as requested by the Office for
Civil Rights (OCR) of HHS. 1/ As relief, HHS asked for
authorization to terminate and deny all HHS-administered financial
assistance to the Tribe.
The Tribe answered that it lacked sufficient and specific
information for either admitting or denying that it was a recipient
of certain federal grants administered by HHS or that it had
submitted an Assurance of Compliance to HHS. 2/ The Tribe has
maintained from the outset of these proceedings that I lack
jurisdiction over this action. Prior to the in-person hearing, the
Tribe sought dismissal of this action based on a number of
theories, including Mr. Bettelyoun's failure to file his complaint
with OCR within the 180-day period specified by 42 C.F.R. 80.7
and the Tribe's alleged right to claim sovereign immunity. Tribe
Memorandum in Support of Affirmative Defenses (Mem. Supp. Aff.
Def.).
For the reasons explained more fully below and in my prior rulings,
I denied the Tribe's earlier filed motions to dismiss and allowed
the parties to put on evidence in support of their respective
positions.
During the week of May 10, 1993, I heard considerable evidence
concerning what occurred during Mr. Bettelyoun's very brief
employment (two months and 19 days) with the Tribe 3/ and why such
events may have occurred. I heard evidence also as to whether
actions the Tribe may have taken against Mr. Bettelyoun during his
employment are subject to review under the provisions of the
Rehabilitation Act, the agency's implementing regulations, or any
Assurance of Compliance the Tribe may have executed for that period
of time. In addition, I heard testimony concerning the consulting
work Mr. Bettelyoun performed for the Indian Health Service (IHS)
of HHS while he was employed by the Tribe and after he allegedly
resigned involuntarily, the work he performed for the corporation
he formed after he allegedly resigned involuntarily, his reasons
for filing his complaint with OCR approximately 16 months after he
left the Tribe's employ, and OCR's explanations for deciding to
investigate his complaint.
Also during the hearing, HHS confirmed the information introduced
by the Tribe that the Social Security Administration (SSA) of HHS
had determined Mr. Bettelyoun to be disabled and was paying him
benefits under the Social Security Act. E.g., Tr. 1134. I
recessed the hearing on May 13, 1993 to enable the parties to
further develop the ensuing credibility, medical, and legal issues.
Tr. 1128 - 36. See also, September 28, 1993 letter by direction of
administrative law judge (ALJ).
During the following months, HHS attempted to locate the records
pertaining to SSA's determination of Mr. Bettelyoun's disability
and to secure Mr. Bettelyoun's consent for disclosing such records
in this proceeding. Mr. Bettelyoun has not given such consent or
made himself available to give further testimony which might
clarify questions such as the nature of the impairments that have
resulted in the agency's disability determination, the effects of
his medical condition, and his ability to perform the work at
issue.
Because Mr. Bettelyoun did not respond to HHS' messages, I sent a
letter to Mr. Bettelyoun at HHS' request, directing him to contact
counsel for HHS concerning this case. August 19, 1993 letter of
ALJ. He failed to respond to my letter as well. See September 28,
1993 letter by direction of ALJ. On September 28, 1993, I ordered
the record closed. Id. Even though Mr. Bettelyoun was unavailable
and did not consent to release his disability records, HHS asked me
to proceed to decision in this case.
I may proceed to decide the questions of how the Tribe treated Mr.
Bettelyoun, and the legal effects of such treatment, only if I
conclude that the Tribe was subject to the proscriptions of section
504 of the Rehabilitation Act and HHS' implementing regulations
during the period in controversy. If the Tribe was not subject to
the anti-discrimination provisions of said law and HHS' regulations
that provide for this compliance proceeding, then I lack
jurisdiction over the controversy, and this action brought by HHS
must be dismissed.
In the following sections, I will first consider the evidence
bearing on the issue of whether the Tribe was subject to the
requirements imposed by Section 504 during the period of time the
Tribe allegedly discriminated against Mr. Bettelyoun. I conclude
that HHS failed to prove by a preponderance of the evidence that
the Tribe received HHS funds during the period of alleged
discrimination. Therefore, HHS has failed to prove that the Tribe
was obligated to conduct itself in accordance with section 504
during the relevant time period. For these reasons, I find that I
lack jurisdiction over this matter, and the compliance proceeding
against the Tribe must therefore be dismissed.
However, in order to expedite a resolution of all other potentially
dispositive controversies in this case, I will proceed also to
discuss the findings I would make if HHS had proven the Tribe's
receipt of HHS funds during the period of alleged discrimination
against Mr. Bettelyoun. Not making these alternative findings
would be unjust to the parties each of which has devoted
considerable resources to its defense over the past years. Thus,
I conclude in the alternative that HHS was not precluded from
bringing this compliance proceeding because Mr. Bettelyoun
unreasonably delayed filing his complaint with OCR. Also, I
conclude in the alternative that HHS has failed to prove by a
preponderance of the evidence that the Tribe discriminated against
Mr. Bettelyoun in violation of section 504 of the Rehabilitation
Act or the agency's implementing regulations.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Undisputed background facts and chronology of events 4/
1. The Tribe has approximately 20,000 members and is located in
Rosebud, South Dakota. Tr. 1102; Tribe Response to Request for
Admissions (RRA) No. 1.
2. The Tribe currently receives federal financial assistance from
HHS. Tribe RRA No. 4.
3. William Bettelyoun is an enrolled member of the Tribe. Tr. 38.
4. Mr. Bettelyoun was hospitalized at the IHS Hospital in Rosebud,
South Dakota, from May 27, 1988 to June 5, 1988. Tribe RRA No. 22.
5. During Mr. Bettelyoun's hospitalization he was tested for HIV
infection. Tribe RRA No. 23.
6. HIV is the virus that causes AIDS. Tribe RRA No. 20.
7. Mr. Bettelyoun's test was positive for antibodies to the HIV
virus. Tribe RRA No. 24; Tr. 61.
8. The Tribe's Resource Development Office (RDO) is responsible
for the planning and development of programs and projects operated
by the Tribe and may provide technical assistance to other Tribal
departments operating programs and projects developed by RDO.
Tribe RRA No. 79, 81.
9. Operation of the RDO, including the salaries of its employees,
is funded by the Bureau of Indian Affairs of the United States
Department of the Interior. Tribe Ex. 1.
10. Earl Bordeaux, Jr., Director of the RDO, recommended that Mr.
Bettelyoun be hired for the position of Senior Planner/Assistant
Director of the RDO, effective June 6, 1988. Tribe RRA No. 30.
11. Mr. Bettelyoun's education and experience qualified him to
perform the essential functions of the position of Senior
Planner/Assistant Director of the RDO. See Tribe RRA No. 28; Tribe
Ex. 2; HHS Ex. 4.
12. Mr. Bettelyoun began work as a Senior Planner/Assistant
Director of the RDO on June 6, 1988, the day following his release
from the IHS Hospital. Tribe RRA No. 25.
13. On or about June 14, 1988, Dr. John Jereb of the IHS Hospital
informed Mr. Bettelyoun that he had tested positive for the virus
that causes AIDS. Tr. 73; Tribe Proposed Finding (PF) No. 10; HHS
PF No. 22.
14. After Mr. Bettelyoun assumed his position with RDO, Mr.
Bordeaux contacted a physician at the IHS Hospital to obtain
information on Mr. Bettelyoun's condition. Tribe RRA No. 33.
15. Dr. Wayne Foster, a physician at the IHS Hospital, informed
Mr. Bordeaux that Mr. Bettelyoun had tested positive for antibodies
to HIV. Tribe RRA No. 34; Tr. 995, 997-1001.
16. By written notification dated August 25, 1988, Mr. Bettelyoun
ended his employment with the RDO on that date. Tribe RRA No. 49;
HHS Ex. 7.
17. On August 26, 1988, the Public Health Service (PHS) of HHS, of
which IHS is a component, executed a contract for Mr. Bettelyoun's
services. HHS PF No. 77, 78; Tribe PF No. 31; Tribe Ex. 25.
18. Pursuant to the contract, Mr. Bettelyoun made speeches for PHS
during the period August 31, 1988 to December 31, 1988, for which
he was paid $6,500. HHS PF No. 77, 78; Tribe PF No. 31.
19. On August 23, 1989, Mr. Bettelyoun filed a civil action
against the United States, seeking to recover $300,000 in
compensatory damages and $100,000 in punitive damages allegedly
caused by the IHS Hospital's release of confidential medical
information. Complaint in Bettelyoun v. U.S., No. 89-3028 (D.S.D.
filed August 23, 1989)(attached to Tribe Mem. Supp. Aff. Def.).
20. Mr. Bettelyoun's suit against the United States alleged that
among the damages he suffered was the loss of his job with the
Tribe's RDO. Id.
21. In October 1989, Mr. Bettelyoun filed an application with SSA
for disability benefits, and he was found eligible for and granted
disability benefits. HHS PF No. 82.
22. At some time in December 1989, Mr. Bettelyoun met Vada
Kyle-Holmes, Regional Manager, OCR, Region VIII, at an
HHS-sponsored workshop in Washington, D.C., where he was making a
presentation regarding AIDS and discrimination. Tr. 170; HHS PF
No. 84.
23. Ms. Kyle-Holmes informed Mr. Bettelyoun that her agency
investigated handicapped discrimination complaints and invited him
to call her regarding his experiences. Tr. 170, 620; HHS PF No.
84.
24. By letter dated December 28, 1989, Mr. Bettelyoun filed a
complaint with OCR, alleging that he had been forced to resign
because of his infection with HIV. Tribe RRA No. 18; HHS Ex. 19.
25. Ms. Kyle-Holmes determined that OCR should accept Mr.
Bettelyoun's complaint for investigation and that the 180-day
filing deadline should be waived. Tribe RRA No. 19; HHS Ex. 28.
26. Ms. Kyle-Holmes's stated reasons for accepting Mr.
Bettelyoun's complaint for filing included her concerns that the
IHS Hospital was also a subject of Mr. Bettelyoun's complaint, and
the public should perceive HHS as enforcing the laws within its own
agencies, such as PHS. HHS Ex. 28.
27. In an Order dated September 26, 1990, the federal district
court dismissed the case of Bettelyoun v. U.S., based on a
settlement agreement in which the United States agreed to pay Mr.
Bettelyoun $30,000 in exchange for his agreement to dismiss the
action and to waive any other claims arising out of the incidents
alleged. Attachments to Tribe Mem. Supp. Aff. Def.
28. In a letter of findings (LOF) dated September 26, 1991, OCR
notified the Tribal Chairman that its investigation of the
complaint filed by Mr. Bettelyoun revealed that the Tribe was not
in compliance with section 504 of the Rehabilitation Act and its
implementing regulations. Tribe RRA No. 57; HHS Ex. 31.
29. The LOF stated that the Tribe had discriminated against Mr.
Bettelyoun solely on the basis of handicap, in violation of 45
C.F.R. 84.4(a), 84.11(a)(1), and 84.11(b)(9). Tribe RRA No.
57; HHS Ex. 31.
30. The LOF stated that the Tribe had not complied with the
procedural requirements of 45 C.F.R. 84.7(b), 84.8, 84.52(b),
and 84.52(d). Tribe RRA No. 57; HHS Ex. 31.
31. The LOF delineated the specific remedial actions, including
bringing the Tribe's procedures into compliance with the
regulations and reinstating Mr. Bettelyoun to his former job and
making him whole with back pay, which OCR deemed necessary for the
Tribe to comply with section 504 of the Rehabilitation Act and its
implementing regulations. Tribe RRA No. 58, 59.
32. HHS and the Tribe attempted informally to resolve the issues
raised by the LOF. HHS PF No. 93; Tribe RRA No. 60 - 62.
33. On November 6, 1992, HHS commenced this proceeding by filing
a Notice of Opportunity for Hearing with the Civil Rights Reviewing
Authority.
34. HHS and the Tribe subsequently negotiated a resolution of
OCR's findings with respect to the Tribe's procedural violations of
section 504. J. Ex. 1.
HHS has failed to establish subject matter jurisdiction.
35. Section 504 of the Rehabilitation Act prohibits subjecting an
"otherwise qualified individual" with "handicaps" to discrimination
solely by reason of her or his handicap under any program or
activity receiving federal financial assistance. 29 U.S.C. 794.
36. For purposes of this action, "federal financial assistance"
means any grant, loan, contract, or other things of value provided
by HHS to the Tribe. See 45 C.F.R. 84.3(h).
37. HHS' right of action, the hearing procedures used, the relief
sought, and my authority to adjudicate the wrongs alleged are all
derived from regulations that implement and enforce section 504 of
the Rehabilitation Act.
38. HHS specifically alleged and sought to prove that the Tribe
received HHS funds during the period in which the acts of alleged
discrimination occurred: from some time after June 14, 1988 to
August 25, 1988. Notice at 4 (para. 3); HHS PF No. 14, 19, 20.
39. To establish subject matter jurisdiction in this proceeding,
HHS has the burden of proving by a preponderance of the evidence
that, during the period from June 14 to August 25, 1988, the Tribe
was in receipt of HHS funds and used the HHS funds in a program or
activity under which Mr. Bettelyoun was subjected to the alleged
acts of discrimination. FFCL 35 - 38.
40. The evidence and filings of record cited by HHS do not support
its contention that the Tribe conceded or admitted to the receipt
of HHS funds during Mr. Bettelyoun's employment. See HHS
Posthearing Brief (Posthrg. Br.) at 52 and matters cited therein.
41. The Tribe denied receiving HHS funds during federal fiscal
year 1988 (October 1, 1987 to September 30, 1988). Tribe RRA No. 7.
42. HHS Reports entitled "Financial Assistance by Geographic
Area," show that certain HHS funds were "obligated" to the Tribe,
Tribal Council, and Indian Health Management, Inc., in Rosebud,
South Dakota, during federal fiscal years 1988 through 1991. HHS
Ex. 17c, d.
43. An Assurance of Compliance is signed by an applicant for
federal financial assistance from HHS. 45 C.F.R. 84.5(a), (b).
44. During OCR's investigation, it found no Assurances of
Compliance filed by the Tribe as required by HHS regulations.
After the present action was initiated, HHS introduced only four
Assurances of Compliance signed by the Tribe since July of 1969,
along with HHS publications listing many HHS grants as having been
obligated to the Tribe during fiscal years 1988 through 1991. HHS
Ex. 31 at 4; HHS Ex. 17a - d; 18a - d.
45. When faced with the discrepancy between the number of
Assurances of Compliance and the number of grants HHS purports to
have given to the Tribe, OCR did not question the accuracy of the
information contained in the HHS publications; it concluded instead
that the Tribe was in violation of the regulation that required the
filing of Assurances of Compliance. HHS Ex. 31 at 4.
46. HHS introduced no evidence explaining why its employees
attributed to the Tribe's receipt the HHS funds that were
separately listed in the HHS publications as having been obligated
to the Tribal Council or to Indian Health Management, Inc. HHS Ex.
17a - d; Tr. 1099; HHS Supplemental Brief (Supp. Br.) at 8.
47. In these proceedings, HHS refers to Indian Health Management,
Inc., listed in its exhibit 17a - d as "Rosebud Health Management,
Inc." See HHS Request for Admissions (RA) No. 8, 11.
48. The Tribe asserts that the health management corporation
referenced by HHS is a privately-owned entity. Tribe RRA No. 8,
11.
49. HHS' witness who ascertained jurisdiction for the agency did
not know whether "Rosebud Health Management, Inc." was a private
corporation. Tr. 1099.
50. HHS failed to prove by a preponderance of the evidence that
funds obligated to Indian Health Management, Inc. should be treated
as having been obligated to the Tribe. FFCL 46 - 49.
51. The Tribe challenged the accuracy of HHS' conclusion that the
Tribe received HHS funds during the period at issue by, among other
things, asking for the audits or reports that were relied upon by
HHS. Tr. 1096.
52. The Tribe did not waive objections to the accuracy of the
information contained in HHS Exhibit 17c, and the regulation at 45
C.F.R. 81.83 does not apply to bar the Tribe's challenge to the
contents of said exhibit. FFCL 51; 45 C.F.R. 81.83
53. After the Tribe specifically objected to the unreliability of
HHS' compilations used to establish jurisdiction, the only audit
report referenced and introduced by HHS is for the Tribe's receipt
of HHS funds during federal fiscal year 1989, which began after Mr.
Bettelyoun had resigned. HHS Ex. 26; Tr. 1096 - 97.
54. Assuming that certain HHS funds were "obligated" to the Tribe
during federal fiscal year 1988, HHS did not offer proof on the
meaning of "obligated" or on whether the funds obligated to an
entity during a fiscal year are also given to or used by that
entity during the same fiscal year. FFCL 42; HHS Ex. 17c at 2, 4.
55. HHS did not prove by a preponderance of the evidence that the
Tribe received or used HHS funds during federal fiscal year 1988.
FFCL 46 - 54.
56. HHS did not offer proof on whether HHS obligated, or the Tribe
received, the funds listed in HHS Exhibit 17c for the full 12
months of federal fiscal year 1988.
57. HHS did not prove by a preponderance of the evidence that the
funds listed in HHS Exhibit 17c were obligated, received, or used
by the Tribe during a period that covered the two months and 12
days of the Tribe's alleged discrimination (June 14 to August 25,
1988) against Mr. Bettelyoun. FFCL 51, 52, 54 - 56.
58. The Tribal Chairman signed Assurances of Compliance dated July
9, 1969, January 14, 1987, March 18, 1988, and February 28, 1990.
Tribe RRA No. 16, 17; HHS Ex. 18a - d.
59. The Tribe's execution of an Assurance of Compliance does not
signify that HHS has already extended federal financial assistance
to the Tribe. 45 C.F.R. 84.5(a), (b); HHS Ex. 18a, b, c at 1,
d.
60. The Assurance of Compliance does not specify when, if, or for
what duration HHS will extend financial assistance to the Tribe.
45 C.F.R. 84.5(a), (b); HHS Ex. 18a, b, c at 1, d.
61. The Tribe's obligations under the Assurance of Compliance
arise only if HHS extends federal financial assistance to the
Tribe. 45 C.F.R. 84.5(a), (b); HHS Ex. 18a, b, c at 1, d.
62. The Tribe's obligations under the Assurance of Compliance last
only for the period during which federal financial assistance is
extended by HHS to the Tribe. 45 C.F.R. 84.5(b)(3); HHS Ex.
18a, b, c at 1, d.
63. In order to use an Assurance of Compliance as material
evidence of jurisdiction, HHS needed to prove also that the
Assurance resulted in HHS' extending federal financial assistance
to the Tribe during the period that covered the two months and 12
days of alleged discrimination and that the funds from HHS were
used by the Tribe in a program or activity under which Mr.
Bettelyoun was subjected to the discrimination alleged by HHS.
FFCL 58 - 62.
64. There is no evidence that any Assurance of Compliance of
record corresponds with any of the funds which, according to HHS
Ex. 17c, were obligated to the Tribe during federal fiscal year
1988.
65. The Assurances of Compliance of record do not show for what
programs they were being submitted, the amount of HHS funds sought,
or the period for which HHS funds were sought. HHS Ex. 18a - d.
66. The only grant application of record shows that, on or about
May 2, 1988, the Tribe requested $25,000 in financial assistance
from HHS for the Spotted Tail Crisis Center (Spotted Tail
Proposal). HHS Ex. 18c at 2.
67. The Spotted Tail Proposal stated that the Tribe intended the
project to start July 1, 1988 and continue for 12 months. HHS Ex.
18c at 2.
68. HHS offered no evidence explaining what actions HHS took in
response to the Spotted Tail Proposal, nor did HHS explain the
significance of the notations in section III of the application
form, which is labeled "Federal Agency Action" and contains a
monetary amount that does not correspond to anything contained in
HHS' publications of obligated funds for federal fiscal year 1988.
HHS Ex. 17c, 18c at 2.
69. RDO quarterly reports for 1988 give rise to a reasonable
inference that, if the Tribe received any HHS funds for its Spotted
Tail Proposal, the Tribe received them after September of 1988.
HHS Ex. 14a, 14b.
70. HHS failed to prove by a preponderance of the evidence that
federal financial assistance, in the form of HHS funds, was
extended to or received by the Tribe at any time during the period
when Mr. Bettelyoun was employed by the Tribe and allegedly
subjected to employment discrimination by the Tribe. FFCL 51 - 69.
71. HHS' failure to prove the Tribe's receipt of HHS funds during
the period of alleged discrimination means that HHS also failed to
prove that Mr. Bettelyoun was subjected to discrimination by the
Tribe under a program or activity for which the Tribe was receiving
HHS funds. FFCL 70.
72. I lack jurisdiction over this compliance action. FFCL 35 - 71.
If HHS had established the existence of jurisdiction, I would find
that HHS is entitled to proceed to a decision on the merits of its
allegations notwithstanding the unreasonable delay incurred by Mr.
Bettelyoun in filing his complaint with OCR.
73. Mr. Bettelyoun's complaint to OCR was filed many months
outside the 180-day period specified in the regulations. 45 C.F.R.
80.7(b); FFCL 16, 24.
74. The Regional Manager for OCR was delegated the discretion to
decide whether to waive the filing period for complaints such as
Mr. Bettelyoun's. HHS Ex. 27 at 9.
75. Were I delegated the authority for determining de novo whether
to waive the 180-day filing period, I would not have accepted Mr.
Bettelyoun's reasons for delay at face value or found them
persuasive, as did OCR's Regional Manager.
76. I lack authority to modify the OCR Regional Manager's exercise
of her discretion to accept Mr. Bettelyoun's complaint for
investigation. FFCL 74.
77. The 180-day period relied on by the Tribe does not apply to
"other information" of noncompliance received by OCR, which can
also be the basis for an OCR investigation and can result in HHS'
bringing a compliance proceeding for termination of HHS funding,
for example, in the present forum. 45 C.F.R. 80.7(c); Tr. 648
- 51.
78. Whether or not OCR should have accepted Mr. Bettelyoun's
complaint for filing, the Tribe has not proven that OCR and HHS
were precluded from bringing this compliance action because Mr.
Bettelyoun delayed filing his complaint. FFCL 73 - 77.
If I had the authority to decide the merits of the discrimination
alleged by HHS, I would find that HHS has failed to prove by a
preponderance of the evidence that Mr. Bettelyoun has been a
qualified handicapped person at all times relevant to this
proceeding.
79. Mr. Bettelyoun has a record of being infected with HIV, an
impairment which substantially limits one or more of his major life
activities, within the meaning of 45 C.F.R. 84.3(j)(1). HHS Ex.
10, 11.
80. Mr. Bettelyoun is a "handicapped person" within the meaning of
45 C.F.R. 84.3(j). FFCL 79.
81. A "qualified handicapped person" in the employment context
means a handicapped individual who, with reasonable accommodation,
can perform the essential functions of the job in question. 45
C.F.R. 84.3(k)(1).
82. HHS has the burden of proving by a preponderance of the
evidence that Mr. Bettelyoun has been able to perform the duties of
a Senior Planner/Assistant Director of RDO during his employment
and following his resignation, for which period HHS/OCR has sought
job reinstatement and "make whole" back pay for Mr. Bettelyoun in
its efforts to bring about voluntary compliance by the Tribe. See
DHHS v. Westchester County Medical Center, DAB CR191, at 34, 51,
aff'd, DAB 1357 (1992); FFCL 31.
83. HHS did not allege, prior to hearing, that Mr. Bettelyoun
required reasonable accommodation or that the Tribe failed to
provide such accommodation. Notice at 5 - 7.
84. Mr. Bettelyoun testified that he has never come to the
realization that he was unable to perform his RDO job due to his
health. Tr. 201.
85. Mr. Bettelyoun released for use in this litigation only his
medical records from the IHS Hospital for the period from January
1988 through December 1989. HHS Ex. 9.
86. The two pages of Mr. Bettelyoun's medical records in evidence
do not describe Mr. Bettelyoun's symptoms, his emotional state, or
his subjective responses to the disease process or the news of his
HIV test results. HHS Ex. 10, 11.
87. To support Mr. Bettelyoun's asserted fitness for his prior RDO
job, HHS relied also on the testimony of Dr. Harry Brown, who
formed the opinion that Mr. Bettelyoun's HIV infection had remained
asymptomatic until at least as late as January 1992 based on charts
and other medical records not authorized by Mr. Bettelyoun for
release in this proceeding. Tr. 1071 - 74.
88. Clinical symptoms of AIDS Related Complex (a disease that is
less serious than AIDS but caused by the HIV virus) include loss of
appetite, weight loss, fever, night sweats, skin rashes, diarrhea,
tiredness, lack of resistance to infection, or swollen lymph nodes.
However, the foregoing are also signs and symptoms of many other
disease as well, and a physician should be consulted to make the
differential diagnosis. HHS Ex. 21c at 7.
89. The medical evidence relied upon by HHS does not establish
that all of the significant symptoms that caused Mr. Bettelyoun to
be hospitalized from May 27, 1988 until June 5, 1988 (e.g., weight
loss of 20 or more pounds, "raging fevers," loss of the ability to
taste, loss of the ability to stand or walk) resulted from his HIV
infection, as opposed to other impairments. See HHS Ex. 10, 11;
Tr. 59 - 62, 312 - 13, 1073 - 74.
90. Individuals' reactions to the HIV virus may differ and may
include significant mental health implications which will require
the best efforts of mental health professionals. HHS Ex. 21c at
18; Tr. 597.
91. Mr. Bettelyoun felt depressed and under a great deal of
emotional pressure after learning of his HIV-positive status and
being told by Dr. John Jereb that he might have only two months to
two years to live. Tr. 72 - 74; 322.
92. Mr. Bettelyoun needed time off from work after learning of his
diagnosis. Tr. 412 - 13, 458.
93. The job of Senior Planner/Assistant Director of the RDO is not
a physical job, but entails considerable mental stress. Tr. 1000.
94. The doctors who treated Mr. Bettelyoun and gave opinions
concerning his fitness for work were not mental health experts,
were not experienced in treating patients with the HIV infection,
and did not address the issue of whether Mr. Bettelyoun was
mentally or emotionally able to perform satisfactorily the job of
Senior Planner/Assistant Director of RDO. Tr. 309, 311, 322, 1069;
HHS Ex. 23 at 14.
95. HHS was aware since before the hearing that one of its
agencies, SSA, had found Mr. Bettelyoun disabled and, therefore,
HHS attempted to block the Tribe's introduction of evidence
concerning Mr. Bettelyoun's relationship with SSA and his receipt
of benefits. Tr. 376, 874, 887, 1134.
96. HHS did not obtain Mr. Bettelyoun's consent to release the SSA
records pertaining to his disability either prior to or after the
hearing in this case. Tr. 1134; September 28, 1993 letter by
direction of ALJ.
97. Mr. Bettelyoun did not make himself available to give further
testimony regarding SSA's award of disability benefits to him or to
clarify the state of his health. September 28, 1993 letter by
direction of ALJ.
98. In accordance with the definitions contained in the Social
Security Act, the finding of disability made by SSA on behalf of
the Secretary of HHS means that Mr. Bettelyoun had physical or
mental impairment(s) of such severity that he was not only unable
to perform his previous work, but he also could not, considering
his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy.
42 U.S.C. 423(d)(2); 20 C.F.R. 404.1505.
99. In accordance with the statute and the regulations promulgated
by the Secretary of HHS, HHS should have in its possession and
control Mr. Bettelyoun's application containing his written
allegations concerning his inability to perform work, as well as
the supporting medical proof provided or made available by Mr.
Bettelyoun showing that he cannot perform his past work and any
other substantial gainful activity of significant numbers in the
national economy due to his severe medical problems. 42 U.S.C.
423(a)(1), (d)(2); 20 C.F.R. 404.315(b) - (d), 404.316,
404.1505, 404.1512 - .1516.
100. HHS did not specify the onset of Mr. Bettelyoun's disability
as found by SSA, nor whether Mr. Bettelyoun was awarded retroactive
benefits.
101. HHS argues that SSA found Mr. Bettelyoun disabled because he
had a diagnosis of aseptic meningitis dated June 5, 1988 and
positive HIV test results also dated June, 1988. HHS Posthrg Br. at
38; HHS Ex. 10, 11.
102. Applying HHS' theory, Mr. Bettelyoun's impairments should
have rendered him unable to perform his RDO job since at least June
of 1988, when he began working for RDO. FFCL 101.
103. There is no legal or factual support for HHS' contention that
SSA found Mr. Bettelyoun disabled under Social Security Ruling
86-20 and the agency's instructions at POMS DI 24525.001 solely
because he had tested positive for HIV and suffered from aseptic
meningitis in June 1988. Attachments to HHS Posthrg. Br.
104. Mr. Bettelyoun's failure to release his SSA records and to
give further testimony undermines his credibility on the issue of
his ability to perform the duties of his former job. FFCL 96, 97.
105. I do not find credible Mr. Bettelyoun's testimony that his
HIV infection never affected his ability to work. FFCL 84, 104.
106. I infer from the totality of the record, including the
extensive absence of relevant medical evidence concerning Mr.
Bettelyoun's health, that either the symptoms of Mr. Bettelyoun's
HIV infection have been significantly more severe than presented by
HHS, or that Mr. Bettelyoun has other impairments (either related
to or independent of the HIV infection) that have rendered him
mentally or physically incapable of performing his former RDO job.
See, e.g., Tr. 1073 - 74; HHS Ex. 21c at 7; FFCL 21.
107. On the facts of this case, HHS is barred from introducing the
theory posthearing that the Tribe discriminated against Mr.
Bettelyoun because it failed to make reasonable accommodation to
known mental and physical impairments of an otherwise qualified
handicapped individual.
108. HHS failed to prove by a preponderance of the evidence that
Mr. Bettelyoun is a qualified handicapped individual within the
meaning of the Rehabilitation Act. FFCL 82 - 107.
If I had the authority to proceed to the merits of the
discrimination alleged by HHS, I would find that HHS has failed to
prove that the Tribe's alleged noncompliance with section 504 of
the Rehabilitation Act could not be corrected by informal means.
\CAS To prove that the Tribe violated section 504 of the
Rehabilitation Act, HHS is required to establish that it could not
secure the Tribe's compliance through informal means. Westchester,
DAB CR191, at 51; DAB 1357, at 8.
110. The amount of Social Security payments to Mr. Bettelyoun is
relevant to the calculation of back pay required by OCR to make him
"whole." FFCL 21, 31.
111. Mr. Bettelyoun's application for disability benefits and the
agency's records and findings on that application are relevant to
the issue of whether Mr. Bettelyoun should be reinstated to his RDO
job, as required by OCR. FFCL 99.
112. HHS and OCR did not make available to the Tribe information
or documents concerning the agency's disability findings and
payment of benefits to Mr. Bettelyoun.
113. After initiating the compliance proceeding, HHS objected to
providing the Tribe with information concerning Mr. Bettelyoun's
work for IHS, which is also relevant to OCR's condition that the
Tribe pay Mr. Bettelyoun back wages to make him "whole." HHS
Objection to Motion for Telephonic Deposition and Information
Request at 2 - 3.
114. As a practical matter, HHS' inability to produce Mr.
Bettelyoun at present has rendered moot the Tribe's refusal to meet
the two conditions specified by OCR for an informal resolution of
the discrimination. See FFCL 31, 96, 97.
115. The means used by HHS in its informal attempts to bring about
compliance were unreasonable and unfair to the Tribe, and now the
conditions set by HHS are impossible for the Tribe to meet. FFCL
112 - 114.
116. HHS has failed to prove that the Tribe's alleged
noncompliance with the Rehabilitation Act would not have been
remedied by informal means that are fair and reasonable, as
contemplated by the law. FFCL 109 - 115.
If I had the authority to decide the merits of the discrimination
alleged by HHS, I would find that HHS has failed to prove by a
preponderance of the evidence that the Tribe subjected Mr.
Bettelyoun to adverse treatment in violation of section 504 of the
Rehabilitation Act.
117. Based on Mr. Bettelyoun's testimony, HHS traces the origins
of the Tribe's actions at issue to Mr. Bordeaux's allegedly
unauthorized discovery and dissemination of the information
concerning Mr. Bettelyoun's HIV infection. See, e.g., Tr. 76; HHS
PF No. 31.
118. Mr. Bordeaux denied that he discovered Mr. Bettelyoun's
medical condition without Mr. Bettelyoun's authorization, or that
he had discussed the matter with others for an improper purpose.
Tr. 996, 997 - 1000, 1006.
119. Mr. Bordeaux's explanations of his actions and motives are
reasonable and consistent with other evidence of record, including
Mr. Bettelyoun's prior disclosure concerning his medical diagnosis
of Rocky Mountain Spotted Fever (Tr. 76 - 77), the chart notation
entered by Dr. Jereb (Tr. 336, 344), the nature of the RDO job
(Tribe Ex. 2), and guidelines issued by the federal Office of
Personnel Management (HHS Ex. 21g).
120. No actionable employment discrimination is established by
HHS' evidence that many Tribal people, without regard for their
work relationship to Mr. Bettelyoun, heard about and discussed his
HIV infection. The sources of such information, or the
participants in such discussions, included Mr. Bettelyoun's aunt,
IHS Hospital employees, those who drew inferences from the hospital
room to which he had been assigned, and Mr. Bettelyoun himself.
E.g., Tr. 403, 411 - 14, 458, 467, 470, 708 - 09, 746, 763 - 64,
767, 879; HHS Ex. 23 at 19, 30.
121. HHS uses Mr. Bettelyoun's experiences and expectations from
June 6 to June 14, 1988 (prior to discovery of his HIV infection)
as a baseline for measuring whether his experiences from sometime
after June 14, 1988 until August 25, 1988 have changed due to his
HIV infection. E.g., HHS PF No. 20; Tr. 55 - 59.
122. HHS' comparison is inappropriate due to factors such as the
nature of the job orientation that took place during the first few
days of work, the new creation of the RDO job assumed by Mr.
Bettelyoun, his having worked without a job description at first,
and the transfer of Mr. Bettelyoun to another department during
July 1988. E.g., Tr. 106, 175, 183, 411 - 13, 455, 765.
123. HHS' evidence concerning Mr. Bordeaux's instructing a
cleaning lady to "scrub" the restroom used by the male RDO
employees (Tr. 508; HHS Prop. FF # 7) and concerning a co-worker's
spraying disinfectant on her equipment after Mr. Bettelyoun used it
(Tr. 705) does not constitute persuasive proof of unlawful
disparate treatment condoned or caused by the Tribe. See, e.g.,
HHS Ex. 12.
124. Even if true, Mr. Bettelyoun's complaints that, due to his
HIV infection, Mr. Bordeaux denied him the opportunity to take
non-job related trips and receive reimbursement for non-job related
travel expenses (e.g., Tr. at 394 - 98) do not constitute evidence
of actionable disparate treatment under 45 C.F.R. 84.4(b)(iii),
which applies only to a "qualified handicapped person."
125. Mr. Bettelyoun believed that the Tribe subjected him to
harassment solely on account of his handicap by moving his desk to
a corner of the RDO office. Tr. 96 - 98.
126. The evidence supporting the conclusion that Mr. Bettelyoun's
desk was moved, if at all, in the course of cleaning the office is
at least as strong as the evidence suggesting that Mr. Bordeaux
moved the desk solely on account of Mr. Bettelyoun's HIV infection.
E.g., Tr. 96 - 99, 446, 508 - 28, 712, 1022 - 26, 1047; Tribe Ex.
30.
127. HHS failed to prove by a preponderance of the evidence that
Mr. Bettelyoun's desk was moved for a discriminatory purpose. FFCL
126.
128. HHS failed to prove by a preponderance of the evidence that
any movement of Mr. Bettelyoun's desk was done as an official act
of the Tribe or with the Tribe's knowledge or acquiescence. FFCL
127.
129. Due to her need for a grant writer, Anita Whipple, director
of the Tribe's Community Health Representative (CHR) department,
requested Mr. Bettelyoun's reassignment to the CHR department with
his consent. Tr. 413; 454.
130. Mr. Bordeaux did not request Mr. Bettelyoun's reassignment,
was out of town when the reassignment occurred, and checked with
Ms. Whipple on Mr. Bettelyoun's whereabouts because the personnel
office did not formally note the transfer. Tr. 454 - 55, 1007 -
08, 1013.
131. HHS failed to prove by a preponderance of the evidence that
Mr. Bettelyoun was transferred to the CHR office for a
discriminatory purpose. FFCL 129, 130.
132. Mr. Bettelyoun's perception that the transfer resulted in
adverse treatment of him due to his HIV infection was based on his
contentions that he was initially assigned to work in a storage
room of the CHR department, was given no typewriter or telephone to
use (Tr. 106 - 08), and that he was later moved into Ms. Whipple's
office and required to use a typewriter stand in her office as his
desk (Tr. 111).
133. Ms. Whipple explained that there was no private office
available in the CHR building, that Mr. Bettelyoun was placed in
her office initially because her office was the only office not
shared with another worker at the time, that Mr. Bettelyoun used a
"student desk" approximately 3.5 feet by 2 feet in size after she
had removed her typewriter (Tr. 449). When Mr. Bettelyoun
complained that he could not work in her office because of
interruptions, she gave him the only other available space in the
building, the storage room, along with her typewriter to use (Tr.
434, 449).
134. Ms. Whipple testified that another planner had previously
used the storage room to work when he needed quiet time to think.
Tr. 450.
135. I find credible Ms. Whipple's testimony that she did not
treat Mr. Bettelyoun adversely, but attempted to help him. FFCL
129, 133.
136. The evidence of record supporting the conclusion that Mr.
Bettelyoun was assigned to work in the storage room and Ms.
Whipple's office due to the unavailability of alternative space in
the CHR building is stronger than the evidence that might support
the conclusion that he was assigned those locations solely on
account of his infection with HIV. FFCL 133 - 135.
137. HHS failed to prove by a preponderance of the evidence that
Mr. Bettelyoun was given his workplace assignments in the CHR
building for a discriminatory purpose, or that he was given no
typewriter or desk to use. FFCL 132 - 136.
138. Mr. Bettelyoun alleged that, because of his HIV infection,
others made it more difficult for him to do his work by creating
unnecessary and undue delays in providing to him the documents or
reference materials he needed. E.g., Tr. 274, 277.
139. Ms. Whipple heard Mr. Bettelyoun say that people were not
cooperative in delivering documents to him in a timely manner.
E.g., Tr. 437.
140. Mr. Bettelyoun was assigned two projects to do for CHR, one
of which involved a training center for AIDS. Tr. 435 - 36.
141. Mr. Bettelyoun told Ms. Whipple he could not complete the
projects for CHR within the deadline because he was having trouble
obtaining the necessary statistics, he was worried about his family
getting beaten up, he did not know how he felt about himself, and
that the subject matter of the project involving AIDS was too close
to him. Tr. 437.
142. Mr. Bettelyoun told Ms. Whipple that he planned to return to
work for RDO. Tr. 436.
143. There is no evidence suggesting that the RDO work would not
have entailed obtaining statistics or data from the same sources
used by the CHR.
144. The Vice-Chairman of the Tribe, Vernon "Ike" Schmidt,
believed that there were problems with Mr. Bettelyoun's obtaining
records from Mr. Schmidt's office because Mr. Bettelyoun's aunt
used to have Mr. Bettelyoun do work for her without routing her
requests through official channels, and people were frustrated with
her. Tr. 925.
145. HHS did not prove by a preponderance of the evidence that any
delays Mr. Bettelyoun may have experienced in receiving data were
solely due to his HIV infection.
146. HHS did not prove by a preponderance of the evidence that,
absent the alleged delays, Mr. Bettelyoun would have been able to
complete his assigned work timely and efficiently.
147. No actionable employment discrimination is established by
HHS' evidence that extended well beyond the employment setting to
matters such as the information related to Mr. Bettelyoun
concerning what was said at a party in another town, what his niece
experienced at her pre-school, what the Vice-Chairman's girlfriend
said to his sister-in-law, and what Mr. Bordeaux's father
reportedly said. E.g., Tr. 126, 143, 275, 538.
148. I accord little probative weight to Mr. Bettelyoun's
testimony regarding allegedly discriminatory incidents which he did
not personally witness, but heard about from others. FFCL 147.
149. I accord little probative weight to the impressions of other
people who did not personally witness allegedly discriminatory
events, but heard them described by Mr. Bettelyoun, his relatives,
or others. FFCL 147.
TOD Native Americans often deal with very sad, upsetting, or
frightening matters with laughter or jokes. Tr. 486, 501 - 02.
151. Even if true, HHS' evidence concerning Alex Lunderman's (the
Tribal Chairman's) laughter and Mr. Bordeaux's jokes about "gay"
people at a bar does not constitute persuasive proof of hostility
or proscribed discrimination towards Mr. Bettelyoun. Tr. 481, 806;
FFCL 150.
152. Mr. Bettelyoun's testimony concerning how others were
harassing him at work ensued from his unique and unreasonable
definition of "harassment" and showed, at the very most, that he
kept silent in response to both the well-intentioned efforts and
lapses in thoughtfulness of others who conducted themselves in
accordance with moods that were not in synchronization with his
moods. See, e.g., 113, 115, 117 - 19, 122 - 24, 130 - 31, 135, 238
- 41, 273, 456 - 57, 924 - 25.
153. Having alleged that Mr. Bettelyoun was subjected to
employment discrimination solely due to his handicap, HHS
established several other reasons that can reasonably account for
the events he attributed to employment discrimination: (a) the
fluctuation of his own emotional state in the death and dying
process, the emotional fluctuations of those around him, and the
absence of synchronization between such fluctuations (e.g., Tr. 354
- 55); (b) "Indian Politics" (e.g., Tr. 143. 363 - 64); (c) his
suspected homosexuality (e.g., Tr. 420 - 21, 461, 584); and (d) his
distorted perceptions of other's behavior caused by his emotional
reaction to the HIV diagnosis (e.g., Tr. 597 - 98; HHS Ex. 21c at
18).
154. Mr. Bettelyoun testified that "Indian Politics" is where
people use rumors or the oral medium to accentuate the negative in
order to "get evil or political gain." Tr. 143, 363 - 64.
155. Mr. Schmidt believed there was friction between Mr. Bordeaux
and Mr. Bettelyoun because of professional jealousy. Tr. 938 -
941.
156. Mr. Schmidt believed that, as a result of the pre-existing
professional jealousy between the two men, Mr. Bordeaux may have
seized upon Mr. Bettelyoun's HIV infection as a pretext for
advancing Mr. Bordeaux's personal interest in ousting Mr.
Bettelyoun from the RDO. Tr. 941.
157. The possible nexus between Mr. Bordeaux's alleged actions and
his jealousy of Mr. Bettelyoun's talents is consistent with Mr.
Bettelyoun's perception that he was a victim of "Indian Politics."
E.g., Tr. 143; FFCL 154.
158. In late June 1988, Mr. Lunderman held a meeting with the RDO
staff at which he told everyone present that the rumors must stop,
the staff needed to work together, and the staff needed to behave
professionally. Tr. 101.
159. The staff meeting held by Mr. Lunderman was appropriate to
addressing the circulation of gossip and rumors that distressed Mr.
Bettelyoun and Mr. Bettelyoun's belief that people should limit
their workday to those tasks contained in their job descriptions.
FFCL 158.
160. On July 19, 1988, a few days after a second meeting with Mr.
Bettelyoun, Mr. Lunderman issued directives requiring all tribal
employees to attend at least one of three designated training
sessions on AIDS. Tribe Ex. 14, 15; Tr. 715 - 17.
161. Mr. Lunderman's efforts to educate the tribal employees on
AIDS were appropriate and lawful. HHS Ex. 21g, 21c at 18; Tr. at
585.
162. After the meeting with Mr. Bettelyoun on July 13 or 14, 1988,
Alex Lunderman authorized Mr. Bettelyoun's reassignment to the CHR
department, headed by Ms. Whipple. Tr. 106, 411 - 15.
163. HHS did not prove by a preponderance of the evidence that the
Tribe took, condoned, or authorized any adverse treatment of Mr.
Bettelyoun solely due to his HIV infection. FFCL 117 - 162.
If I had the authority to decide the merits of discrimination
alleged by HHS, I would find that HHS has failed to prove by a
preponderance of the evidence that the Tribe forced Mr. Bettelyoun
to resign in violation of section 504 of the Rehabilitation Act.
164. Mr. Bettelyoun testified that Mr. Bordeaux repeatedly asked
for his resignation between June 20 and July 15, 1988. Tr. 90.
165. Mr. Bordeaux denied under oath that he ever asked for Mr.
Bettelyoun's resignation. Tr. 1004.
166. No one other than Mr. Bettelyoun testified to having heard
Mr. Bordeaux request that Mr. Bettelyoun resign.
167. According to Mr. Bettelyoun's testimony, Mr. Bordeaux last
asked for his resignation on or about July 15, 1988, more than a
month before Mr. Bettelyoun resigned. Tr. 90, 147.
168. Mr. Bettelyoun believed that Mr. Bordeaux had a drinking
problem which caused Mr. Bordeaux to be gone from the office for
long periods of time and exacerbated the situation with Mr.
Bettelyoun's being HIV-positive. Tr. 196.
169. HHS has not proved by a preponderance of the evidence that,
even if Mr. Bordeaux did seek Mr. Bettelyoun's resignation, he did
so solely on account of Mr. Bettelyoun's HIV-positive status. FFCL
155, 156, 168.
170. When Mr. Bordeaux said he did not want to work with Mr.
Bettelyoun, Mr. Schmidt and Alex Lunderman told Mr. Bordeaux to
protect Mr. Bettelyoun's rights and to protect the Tribe's
interests. HHS Ex. 25b; Tr. 921, 939.
171. Mr. Bettelyoun never heard Alex Lunderman say that Mr.
Bettelyoun should be fired or should resign. Tr. 227 - 28, 231.
172. HHS introduced no credible evidence that Mr. Lunderman or any
official of the Tribe authorized, directed, or agreed with any
request Mr. Bordeaux may have made for Mr. Bettelyoun's
resignation. See, e.g., Tr. 802, 810 - 14.
173. Mr. Bettelyoun's perception that Mr. Lunderman wanted him to
resign was based on the observation that Mr. Lunderman issued no
memorandum to Mr. Bordeaux instructing him to stop requesting a
resignation. Tr. 227 - 28.
174. HHS did not prove that Mr. Lunderman's failure to issue such
a memorandum caused Mr. Bettelyoun's resignation. FFCL 173.
175. HHS has not proved by a preponderance of the evidence that
any request Mr. Bordeaux may have made for Mr. Bettelyoun's
resignation constituted an official act on behalf of the Tribe.
FFCL 170 - 174.
176. Mr. Bettelyoun testified that during the latter period of his
employment with the Tribe, he had permission to work 50 percent of
his time at home, 25 percent in the field, and 25 percent at the
CHR office. Tr. 141.
177. Ms. Whipple did not know where Mr. Bettelyoun went after
working approximately two weeks in the CHR building. Tr. 448.
178. Ms. Whipple believed Mr. Bettelyoun had returned to work at
RDO because "he was still around." Tr. 448 - 49.
179. Mr. Bordeaux did not recall seeing Mr. Bettelyoun again in
the RDO and thought he was traveling out of town on business for
RDO. Tr. 1009, 1015.
180. Before he resigned from his job with the Tribe, Mr.
Bettelyoun was away from his job with the Tribe for some periods of
time to make AIDS presentations for IHS. Tr. 150, 152 - 53, 661,
721, 752.
181. Mr Bettelyoun did not consistently appear for work for the
Tribe from some time in July 1988 until he resigned on August 25,
1988. FFCL 177 - 180.
182. A week or more before August 25, 1988, Mr. Bettelyoun told
Arvella Haukaas, 5/ secretary in the RDO, that he had given his
oral resignation and planned to do consulting work for IHS. Tr.
721, 724 - 26.
183. Mr. Bettelyoun testified that he never pursued other job
possibilities while he was employed with the Tribe. Tr. 398.
184. Shortly before Mr. Bettelyoun resigned from the Tribe, he and
Roger Follas of IHS discussed the possibility of Mr. Bettelyoun's
continuing to make speeches regarding AIDS for IHS. Tr. 663.
185. The day after Mr. Bettelyoun resigned, Mr. Follas executed a
purchase order to pay Mr. Bettelyoun for his services. Tribe Ex.
25.
186. I do not find credible Mr. Bettelyoun's testimony that he
never pursued other job possibilities while he was employed with
the Tribe. FFCL 182 - 185.
187. On accepting Mr Bettelyoun's resignation, Mr. Bordeaux gave
Mr. Bettelyoun the name of Dr. Wayne Foster of the IHS Hospital.
Tr. 147.
188. After resigning from his RDO job and obtaining Dr. Foster's
name, Mr. Bettelyoun filed suit against the United States for the
IHS's unauthorized release of his medical information and received
$ 30,000 in settlement. FFCL 19, 27.
189. Mr. Bettelyoun's lawsuit not only sought damages he
attributed to his allegedly involuntary resignation from the RDO
job, but also damages he attributed to his allegedly involuntary
resignation from a part time job he had concurrently held in a
video store managed by his brother. FFCL 19; Tr. 798.
190. On or about September 13, 1988, 19 days after his
resignation, Mr. Bettelyoun submitted a claim to IHS for $2281 for
having completed 19 presentations. HHS Ex. 39.
191. In November, 1988, Mr. Bettelyoun asked IHS to pay $250 for
each presentation he had made in October, and he asked that IHS pay
him an additional $3018.40 for his future presentations. E.g., HHS
Ex. 39.
ECNT Even the $6500 IHS paid Mr. Bettelyoun under his contract
from August 31 through December 31, 1988 (Tr. 379, 666; R. Ex. 25)
exceeded the gross amount Mr. Bettelyoun could have earned during
the same four month period from the RDO job, which paid $7.75 per
hour (R. Ex. 5).
193. In September 1988, Mr. Bettelyoun, his brother, and others
formed a corporation through which Mr. Bettelyoun also gave
presentations similar to the ones he was then making for IHS, but
over a larger multi-state area. HHS Ex. 37; Tr. 149, 301, 358,
872, 875.
194. Mr. Bettelyoun's brother became the business manager of the
corporation and, in 1989, the Tribe was asked to pay $500 for Mr.
Bettelyoun's presentation. See, Tr. 300 - 01, 358, 879.
195. Mr. Bettelyoun's resume and his testimony reveal a pattern in
his job history of leaving jobs after periods of less than one
year, for reasons that included disagreements with superiors or
dissatisfaction with his hours of work or pay. HHS Ex. 4; Tr. 39
- 43.
196. On the basis of the record as a whole, I do not find Mr.
Bettelyoun to be a credible witness. FFCL 84, 97, 104, 105, 183,
186.
197. HHS failed to prove by a preponderance of the evidence that
Mr. Bettelyoun's resignation was involuntary. FFCL 164 - 196.
ANALYSIS
I. HHS has failed to establish subject matter jurisdiction.
A. HHS was aware that subject matter jurisdiction turned on
the Tribe's receipt of HHS funds during the period of alleged
discrimination against Mr. Bettelyoun, and HHS had ample
opportunity to prove the existence of that jurisdictional fact.
I begin my analysis of the jurisdictional issue with the language
of the statute itself. Section 504 of the Rehabilitation Act
provides, in relevant part:
No otherwise qualified individual with handicaps . . . shall,
solely by reason of her or his handicap, . . . be subjected to
discrimination under any program or activity receiving Federal
financial assistance. . . .
Section 504 of the Rehabilitation Act, 29 U.S.C. 794 (emphasis
added); see also, 45 C.F.R. 84.4(a).
HHS defines "Federal financial assistance" as any grant, loan,
contract, or other arrangement by which HHS makes available funds,
services of Federal personnel, or real and personal property. 42
C.F.R. 84.3(h). Also, as aptly summarized by the Regional
Director of OCR in her testimony explaining the agency's role under
section 504 of the Rehabilitation Act:
[O]ur responsibility is to ensure that the government's money
[distributed by HHS] is not used in a discriminatory way. That the
programs and activities are operated in a non-discriminatory
manner.
Tr. 645. Therefore, the regulations authorize effectuating
compliance with section 504 of the Act by terminating, or refusing
to grant or continue, financial assistance from HHS. 45 C.F.R.
80.8(a).
HHS initiated this compliance proceeding against the Tribe pursuant
to regulations that implement section 504 of the Rehabilitation
Act. Notice at 1. I was designated to hear and decide this case
pursuant to 45 C.F.R. Parts 81 and 84. The hearing procedures
utilized to date, the remedy sought, as well as my authority to
preside over the case, all ensued from HHS' contention that the
Tribe had failed in its duty to comply with section 504 of the
Rehabilitation Act with respect to its treatment of Mr. Bettelyoun.
See 45 C.F.R. 80.8(c) and 80.9.
As the statute and regulations make clear, the present compliance
proceeding cannot be used to regulate or remedy all instances of
discrimination against handicapped individuals. No prohibited
discrimination exists under section 504 of the Rehabilitation Act
if, for example, an accused employer was not a recipient of HHS
funds when the alleged acts of discrimination occurred. Absent
receipt of HHS funds during the period in controversy, the employer
could not have operated any program or activity within the purview
of section 504 of the Rehabilitation Act. In such a situation, HHS
would have no enforceable legal interest in the employer's actions,
and any action the employer may have taken against a handicapped
employee would not be reviewable or remediable by me, pursuant to
the delegation made under the regulations that implement and
enforce Section 504.
HHS is in apparent agreement with this construction of subject
matter jurisdiction. In the section of its Notice titled "Parties
and Jurisdiction," HHS alleged:
During the period in which the actions of the recipient giving
rise to this Notice occurred, the Tribe received Federal financial
assistance. Among other Federal financial assistance from DHHS
received by the Tribe in 1988, RSTA [Rosebud Sioux Tribal
Administration] received Federal funds in the form of Low Income
Home Energy Assistance Program block grants.
The Tribe responded that it lacked sufficient and specific
information to admit the allegation and therefore denied it.
Answer at 12.
It is well settled that subject matter jurisdiction may be raised
at any time during a proceeding, and, further, the parties cannot
confer subject matter jurisdiction by stipulation or waiver. In
this case, the Tribe has repeatedly asserted that I lack authority
over the Tribe and the subject matter of this action. However,
until the posthearing briefing, its jurisdictional arguments had
not focused on the issue of funding from HHS, and I had denied the
Tribe's previously filed motions to dismiss.
The Tribe first asked for dismissal of the action in its Answer.
Answer at 6. Its Answer asserted, inter alia, that the Tribe had
never consented to participate in any administrative proceeding.
Answer at 1. In its Memorandum in Support of Affirmative Defenses,
the Tribe relied on the doctrine of sovereign immunity to argue
that I should dismiss the action because I lack the authority to
compel the Tribe to rehire Mr. Bettelyoun or pay back wages to him
from its treasury. Tribe Mem. Supp. Aff. Def. at 2 - 3, 13.
HHS opposed the Tribe's motion and supporting arguments by pointing
out that the remedy provided by law and sought by HHS in this
action is limited to the termination of HHS' funding to the Tribe.
HHS Prehearing Brief (Prehrg. Br.) at 2 - 4. In addition, HHS
attached a copy of an Assurance of Compliance signed by an official
of the Tribe on January 14, 1987 and argued that, by signing this
document, the Tribe had expressly agreed to comply with the
substantive and procedural requirements of the law and subject
itself to compliance proceedings. 6/ HHS Prehrg. Br. at 3.
At that time, the Tribe did not challenge the materiality of the
executed Assurance of Compliance appended to HHS' brief. Also
before me at the time of the Tribe's first motion to dismiss were
certain issues concerning the Tribe's technical compliance with
certain procedural requirements of the Act and regulations during
years prior to 1987, to which the January 14, 1987 Assurance of
Compliance relied upon by HHS could have been applicable. These
issues concerning technical compliance were later resolved by
agreement of the parties at hearing. J. Ex. 1.
I denied the Tribe's motion to dismiss during a prehearing
conference on May 4, 1993. I ruled that HHS had the right to
present evidence at hearing on all disputed issues because
sovereign immunity is subject to waiver, and the Tribe's execution
of an Assurance of Compliance is evidence of such a waiver. May
21, 1993 Confirmation of Rulings on Motions. I ruled that HHS was
not precluded from maintaining this compliance action as a matter
of law. Id.
Later at hearing, but prior to the introduction of any testimony,
the Tribe filed another motion to dismiss, again arguing that the
proceeding was barred as a matter of law. The Tribe reasoned that
Congress did not make the Rehabilitation Act applicable to
sovereign entities such as Indian tribes. May 10, 1993 Motion to
Dismiss. However, by this point in the proceeding, the Tribe had
stipulated to the admissibility of those HHS exhibits containing
various copies of the Assurances of Compliance executed by the
Tribe. See, HHS Ex. 18a - d and J. Ex. 2 at 4. Even though it
denied the legal effect of an Assurance of Compliance because it
"spoke for itself," the Tribe had admitted to HHS that its Chairman
signed Assurances of Compliance on January 14, 1987, March 18,
1988, and February 28, 1990. Tribe RRA No. 16, 17.
I denied the Tribe's second motion to dismiss and allowed HHS to
proceed with its case. Tr. 10 - 11. The Tribe's underlying legal
theory was defective and the Assurances of Compliance signed by the
tribal Chairman, along with other information then before me,
appeared to give HHS the authority to proceed against the Tribe.
The Tribe was not entitled to dismissal of the proceeding without
an evidentiary hearing.
During hearing, counsel for the Tribe specifically asked the HHS
employee who ascertained OCR's jurisdiction over the Tribe (HHS Ex.
17b) to disclose the whereabouts of those documents that show the
Tribe's receipt of HHS funds during the period of Mr. Bettelyoun's
employment. Tr. 1094, 1096. Counsel for HHS referred to an audit
report for the period from October 1, 1988 through September 30,
1989 and sought to rely on the official nature of HHS'
publications. Tr. 1096 - 98. Counsel for the Tribe contended that
these were "poor records" to show the Tribe's receipt of federal
funds. Tr. 1098.
After I closed the evidentiary record, both parties addressed the
issue of whether the evidence of record establishes that the Tribe
received HHS funds during the period when the disputed acts took
place. HHS argued that the evidence established the Tribe's
receipt of federal funds from HHS during the period of Mr.
Bettelyoun's employment:
Although at times vacillating in its position on whether the
Tribe received FFA [federal financial assistance] from the
Department while Mr. Bettelyoun was employed with it, RST [the
Tribe] conceded during the hearing and in responding to DHHS'
Requests for Admissions, that such funds did then and do now
subsidize its operations.
HHS Posthrg. Br. at 51 - 52 (emphasis added and citations omitted).
The Tribe argued that no credible evidence established the Tribe's
receipt of any monies from HHS during the relevant time period, and
"[w]ithout establishing receipt of money, the government's burden
on the other elements cannot be established." Tribe Posthrg. Br.
at 58.
In reply, HHS cited additional evidence of record to show that the
Tribe had received federal funds from HHS in 1988, and argued that
its proof was reliable. HHS Reply at 44 - 45. HHS argued also
that two tribal officials gave testimony that acknowledged the
receipt of such funds. Id. at 45. The Tribe, in turn, asserted in
reply that HHS did not prove by a preponderance of the evidence
that the Tribe received HHS-administered grants during 1988, when
Mr. Bettelyoun was employed and allegedly subjected to unlawful
discrimination by the Tribe. Tribe Reply at 18.
Because the parties had settled the issues involving the Tribe's
failure to follow certain procedural requirements of the law (J.
Ex. 1), the only remaining issues of discrimination relate to the
manner in which the Tribe conducted itself towards Mr. Bettelyoun
during the time period identified by HHS. If the Tribe was legally
obligated to conduct itself during that period in a manner
consistent with the anti-discrimination provisions of the
Rehabilitation Act and HHS' regulations, then there exists a cause
of action for HHS to pursue in this compliance proceeding, and I
would have the authority to adjudicate the merits of the
allegations presented by HHS. Otherwise, I must dismiss the
proceeding against the Tribe.
The record is clear that Mr. Bettelyoun was employed by the Tribe
as RDO's Senior Planner/Assistant Director for a total period of
two months and 19 days: from June 6, 1988 until he resigned on
August 25, 1988. Tribe Ex. 6, 8. HHS has alleged no
discrimination by the Tribe or its agents from the starting date of
Mr. Bettelyoun's employment until June 14, 1988, when Mr.
Bettelyoun received the results of his test for HIV. HHS PF No.
14, 19, 20. HHS alleged and attempted to prove at hearing that
acts of employment discrimination took place from some time after
June 14, 1988 until August 25, 1988, a period of two months and 12
days at the very most. HHS PF No. 14, 19, 20, 71. HHS seeks no
finding of fact or conclusions of law that the Tribe had engaged in
discrimination after August 25, 1988. HHS PF No. 77 - 97. In
arguing specifically that the Tribe had admitted to the receipt of
HHS funds "while Mr. Bettelyoun was employed with it" (HHS Posthrg.
Br. at 52), HHS recognized the significance of this small window of
time.
On March 8, 1994, I issued an order authorizing the parties to
submit supplemental briefs on the issues of jurisdiction and the
allocations of the burden of proof. Order Authorizing Supplemental
Briefing on Jurisdictional Issue. I directed the parties'
attention to the controlling time period of approximately two
months and 12 days and explained my concerns as follows:
Because subject matter jurisdiction cannot be waived and may
preclude my deciding the merits of the other controversies between
the parties, I am giving the parties the opportunity to further
argue the question of whether the evidence proves HHS' contention
that certain employment actions that were allegedly taken by the
Tribe or its agents against Mr. Bettelyoun during 1988 (that is,
those actions that allegedly began some time after June 14, 1988,
when the HIV-positive diagnosis was made, and allegedly lasted
until his resignation on August 25, 1988) are reviewable in this
compliance proceeding because the Tribe had signed the Assurances
of Compliance of record or received the funding identified by HHS.
Id. at 2.
Thereafter, both parties filed supplemental briefs on the issues I
raised.
I have reviewed the submissions of both parties together with the
evidentiary record before me. I conclude that I am without
jurisdiction over the merits of the controversy and the Tribe is
not subject to this compliance proceeding as a consequence of any
action it may have taken against Mr. Bettelyoun from some time
after June 14 until August 25, 1988. The record as a whole
supports the Tribe's contention that HHS has failed to prove that
jurisdiction exists in this case. There is insufficient proof
that, during the two months and 12 days of 1988 when the Tribe
allegedly discriminated against Mr. Bettelyoun, the Tribe was
subject to the provisions of the Act and HHS' implementing
regulations.
B. There is no support in the record for HHS' contention that the
Tribe has admitted to the receipt of HHS funds during Mr.
Bettelyoun's employment.
As noted above, HHS claimed that the Tribe admitted to receipt of
HHS funds while Mr. Bettelyoun was employed from June 6 to August
25, 1988. HHS Posthrg. Br. at 51 - 52. I have reviewed the
citations provided by HHS, and I find no admission by the Tribe to
that effect. Nor does the evidence relied upon by HHS show that
the Tribe received any federal funds from HHS during the period in
controversy, beginning with June 14, 1988 and ending with August
25, 1988.
In support of its contention that the Tribe received HHS funds
while Mr. Bettelyoun was employed by the Tribe, HHS relied on the
Tribe's responses to Requests for Admissions No. 9 - 15. HHS
Posthrg. Br. at 52. The cited admissions do not support that
contention. In those requests for admissions, HHS asked about
certain HHS funds allegedly received by the Tribe, Tribal Council,
or Rosebud Health Management, Inc. from October 1, 1988 to
September 30, 1991, the months and years after Mr. Bettelyoun had
resigned from his job. Moreover, the Tribe not only denied all of
the foregoing requests to admit, it also informed HHS that Rosebud
Health Management, Inc., is a private company and that the Tribal
Council does not receive federal funds but acts as a body on behalf
of the Tribe. The Tribe stipulated to having received the HHS
funds shown in the audits only for the fiscal years that ended on
September 30 of 1989, 1990, and 1991. Tribe RRA No. 9, 10, 12, 14,
15. The Tribe's stipulations did not pertain to the period in 1988
when Mr. Bettelyoun was allegedly subjected to discrimination by
the Tribe.
When HHS asked the Tribe to admit that it received certain
enumerated HHS funds "[f]or fiscal year October 1, 1987 to
September 30, 1988," the Tribe's response was "Denies." Tribe
RRA
No. 7. There is no written admission by the Tribe that it received
any funds from HHS during Mr. Bettelyoun's employment, i.e., from
June 6 to August 25, 1988.
There is also no support for HHS' contention that the Tribe
admitted at hearing that it received HHS funds while Mr. Bettelyoun
was employed at RDO. See HHS Posthrg. Br. at 51 - 52. In so
contending, HHS erroneously relied on the testimony of Jean
Battistoni (Tr. 1086 - 88), the OCR employee who prepared a
document for OCR's file stating that the Tribe received Low Income
Home Energy Assistance funds from October 1, 1987 to the 1991
winter season. HHS Ex. 17b. Ms. Battistoni gave testimony
concerning HHS' Exhibits 17a through 17d. The transcript pages
cited by HHS do not contain any admission by the Tribe that it
received HHS funds during Mr. Bettelyoun's employment. Tr. 1086 -
88.
HHS notes that Ms. Battistoni authored HHS' Exhibit 17b, and HHS
contends that the exhibit shows the Tribe's receipt of Low Income
Home Energy Assistance from HHS for the fiscal years 1987 to 1991.
HHS Supplemental Brief (Supp. Br.) at 8. However, Ms. Battistoni's
authorship and opinions do not create jurisdictional facts. Ms.
Battistoni is the Equal Opportunity Specialist for OCR who
investigated Mr. Bettelyoun's complaint against the Tribe, and she
was charged with "establish[ing for OCR] funding jurisdiction with
respect to" the Tribe. Tr. 1084, 1086. In that capacity, Ms.
Battistoni authored a report to OCR stating that the Tribe received
the Low Income Home Energy Assistance funds. HHS Ex. 17b.
However, the source material she cited in her report indicates that
the Tribal Council (not the Tribe) received said funds. HHS Ex.
17b - d. Moreover, the source material cited in her report
indicates that the Tribe received different HHS funds, which Ms.
Battistoni did not attribute to the Tribe. Id.
Ms. Battistoni did not explain in her report or in her testimony
why she had equated the Tribal Council with the Tribe, whereas the
source documents listed them separately. Nor did Ms. Battistoni
explain why, as the investigator for OCR attempting to establish
"funding jurisdiction" over the Tribe, she did not find that the
Tribe had received any of the 13 HHS grants listed in HHS' Exhibit
17c, for example, as having been obligated to the Tribe. HHS
introduced no evidence or argument to explain such apparent
inconsistencies in its position even after the Tribe had put HHS on
notice that it was not conceding the accuracy of the information
contained in HHS' official publication or the conclusions derived
by HHS. Tribe RRA No. 6 7/; Tr. 1097.
Also, the Tribe gave notice before hearing that it was disputing
HHS' attributing to the Tribe those funds that were obligated to
Rosebud Sioux Health Management, Inc.. Tribe RRA No. 8, 11. 8/
(The Tribe said it was not able to admit or deny whether Rosebud
Sioux Health Management, Inc., received HHS funds because the
corporation was privately owned.) However, at hearing, Ms.
Battistoni testified for HHS that she was attributing the money
received by Rosebud Sioux Health Management, Inc., to the Tribe.
Tr. 1099. Even though her original report to OCR did not contain
this conclusion, the report prepared by another employee of OCR did
contain this conclusion and Ms. Battistoni apparently decided to
adopt it. HHS Ex. 17a 9/ and 17b.
In answer to questioning by counsel for the Tribe, Ms. Battistoni
admitted that she did not know whether Rosebud Sioux Health
Management, Inc., is a private corporation. Tr. 1099. In
addition, the source material relied upon by HHS does not equate
the management company with the tribe. HHS Ex. 17c, 17d. Nowhere
in the record is there any evidence that the Tribe owns or operates
the health management company.
While Ms. Battistoni was still on the witness stand, counsel for
the Tribe readily acknowledged that the Tribe has received "federal
funds." Tr. 1098 - 99. Such an acknowledgement is consistent with
the Tribe's evidence that it received funding from the U.S.
Department of Interior, Bureau of Indian Affairs, in order to
operate the RDO and pay for Mr. Bettelyoun's salary from June 6
until August 25, 1988. Tribe Ex. 1; Tr. 191 - 92; 984 - 85, 1005.
However, the Tribe never conceded the receipt of federal funds from
HHS or the receipt of HHS funds during Mr. Bettelyoun's employment.
To the contrary, the Tribe specifically pointed out at hearing that
HHS has not placed before me any audit report showing the Tribe's
receipt of HHS funds during Mr. Bettelyoun's employment. Tr. 1096.
C. The Tribe did not waive objections to the accuracy of the
documents relied upon by HHS.
HHS argued that 45 C.F.R. 81.83 applies to bar the Tribe from
challenging the accuracy of the information contained in HHS'
official publications (HHS' Exhibits 17c and 17d), because the
Tribe had failed to avail itself of the opportunity to make a
contrary showing before or at hearing. HHS Supp. Br. at 7. I
reject this argument for several reasons.
First, even if HHS were correct in its assertion that the Tribe
failed to challenge the contents of the HHS Exhibits before or at
hearing, the absence of subject matter jurisdiction may be raised
by a party or by me at any time during the proceedings. Moreover,
the procedural regulation cited by HHS applies only to official
notice taken (or to be taken) of a material fact not appearing in
the evidence of record. The material fact asserted to be true by
HHS, that the Tribe received HHS funds, appears in HHS' Exhibits
17c and 17d, which were admitted into the record on HHS' motion.
In addition, the record contains the Tribe's prehearing denials,
along with all the previously discussed conflicts in the evidence
involving the HHS publications at issue.
The record shows also that the Tribe attempted to prove the
contents of the HHS publications untrue at hearing through its
questioning of Ms. Battistoni, the witness HHS had chosen to
testify on the subject:
Q: [W]here is the audit on the Rosebud Sioux Tribe for the
period of time covering Mr. Bettelyoun's employment? Where is the
audit by their auditors that is provided to you?
Do you have one at all?
A: No. No. The audit that was provided to me that was in our
region, that was being considered at the time, is the audit that's
in the book.
Q: So you have no audit. You have no audit for the Tribe's
general --
A: They are done only every two years.
Tr. 1096.
To exacerbate the problems created by these non-responsive answers
from HHS' witness, HHS' counsel interjected an audit report that
did not cover the period of Mr. Bettelyoun's employment and was
clearly not responsive to the Tribe's question on the existence and
whereabouts of any audit covering the period of Mr. Bettelyoun's
employment. Id. 10/ After such exchanges, counsel for the Tribe
argued: "these [HHS publications] are merely compilations by
somebody in the Department of Health and Human Services .... a
compilation that somebody put together without any reliance or any
support in any particular audit." Tr. 1097.
The Tribe's concerns are legitimate, given the foregoing testimony
from Ms. Battistoni, her counsel's interjection of an audit report
not done for the period of Mr. Bettelyoun's employment, the
discrepancies between Ms. Battistoni's written opinion and the
contents of her cited sources, and Ms. Battistoni's failure to
attribute to the Tribe any of the HHS funds which, according to her
cited sources, were obligated to the Tribe. See HHS Ex. 17b - d.
HHS' continued advocacy of Ms. Battistoni's bald conclusion that
Low Income Home Energy Assistance funds were received by the Tribe
is inconsistent with HHS' concurrent position that the source
documents containing different information (HHS Ex. 17c, 17d) are
also accurate. HHS Supp. Br. at 8. Inconsistencies such as these,
created by HHS, call into question the accuracy of its exhibits.
In addition, I note that OCR's investigators initially found no
evidence that the Tribe filed Assurances of Compliance with HHS,
which are required by HHS' regulations as a condition for the
receipt of HHS grants. HHS Ex. 31, OCR Report of Findings at 11;
45 C.F.R. 84.5. Later, HHS found one from 1969, one from 1975,
and one from March 1988. HHS Ex. 18a - c. None of the three was
for Low Income Home Energy Assistance, however, nor do they
correspond to any of the information contained in HHS' Exhibits 17c
and 17d. Assuming that HHS follows and enforces its own
regulations, the absence or shortage of Assurances of Compliance
from the Tribe over the years could reasonably imply that the HHS
funds listed in HHS' Exhibits 17c and 17d were either not received
at all by the Tribe or not received in the frequency suggested by
Ms. Battistoni and the HHS publications. At the very least, the
absence or shortage of Assurances of Compliance calls into question
also the accuracy of the information contained in HHS'
publications. 11/
Instead of making available the underlying audits or offering other
witnesses' testimony to address these issues, HHS chose to argue
that the publications were officially prepared by a responsible
component of HHS. Tr. 1097 - 98. Such arguments do not prove the
accuracy of the information contained in the publications. HHS'
arguments have merely reinforced the fact that its publications
were properly admitted into evidence because, even if the Federal
Rules of Evidence had been strictly applied in this administrative
proceeding, HHS' publications are public reports within the hearsay
exceptions and do not require authentication or identification as
a condition precedent to their admissibility. See Fed. R. Evid.
803(8), 902. The contents of the publications were offered by HHS
as evidence of a material fact on the disputed issue of subject
matter jurisdiction. The admission of these publications and the
many dozens of documents submitted by both parties in this case
does not mean that the contents of all such documents are true,
accurate, or impervious to challenge.
HHS described the Tribe's objections on jurisdiction as relating to
HHS' not having presented "any audit of the Tribe's financial
operations for 1988." HHS Supp. Br. at 8. By contending also that
the one audit report presented by HHS (HHS Ex. 26) was based on the
financial statements submitted by the Tribe, HHS reasoned that the
Tribe could have and should have submitted its own financial
statements to refute the information contained in HHS'
publications: "The burden is on the Tribe to present contradictory
evidence and the financial statements of the Tribe clearly would be
in its possession." HHS Supp. Br. at 9.
HHS' narrow characterization of the Tribe's objection is
inappropriate in the context of the exchange with Ms. Battistoni,
wherein the Tribe was attempting to ascertain which, if any, audit
report was used in the preparation of the HHS publications in
evidence. Moreover, the Tribe never equated its references to
"audit" with HHS' Exhibit 26. Counsel for HHS interjected that
equation at hearing and then incorrectly attributed that equation
to the Tribe.
In addition, I find HHS' arguments inappropriate to a moving party
seeking an administrative order against the other party. At the
very least, HHS has the burden of coming forward with evidence to
prove that I have jurisdiction to review the discriminatory acts
alleged. See HHS Supp. Br. at 3 - 5. HHS is aware that I am
permitted to draw inferences or presumptions from a party's failure
to explain facts that are exclusively in its possession. HHS Br.
at 4. HHS is aware also that the hearing process is intended to
assure the production of the most credible evidence available. Id.
at 5.
HHS' attempt to place the burden of production on the Tribe, could
raise the inference that HHS does not have audits or like reports
of the federal funds it has obligated during given periods, or that
HHS has prepared its publications (HHS Ex. 17c and 17d) based only
on information provided by the recipients of its funds. However,
I have been given no reason to believe that HHS has prepared the
publications under consideration without having conducted reviews
or audits of its own records on the obligation of its own funds.
These audits, reports, and records should be in HHS' possession.
It is not the Tribe's burden in these proceedings to acquire all
such documents from HHS.
HHS specifically alleged in the jurisdictional section of the
Notice that, "[d]uring the period in which the actions of the
recipient giving rise to this Notice occurred, the Tribe received
Federal financial assistance." Notice at 4 (para. 3). In the
context of HHS' regulations, "Federal financial assistance" means
assistance from HHS. 45 C.F.R. 84.3(h). Therefore, the
inferences arising from the non-production of relevant evidence are
against HHS.
Under all of the foregoing circumstances and to the extent 45
C.F.R. 81.83 is applicable, I find that the Tribe had not waived
its objections to HHS' evidence. The Tribe has made a sufficient
contrary showing in challenging the truth and accuracy of the
information contained in HHS Exhibits 17b, c, and d.
D. The audit report and HHS publications of record do not
establish that the Tribe received HHS funds during the period from
June 14 to August 25, 1988.
I agree with the Tribe that HHS' reliance at hearing on its Exhibit
26, an audit report that covers a period after Mr. Bettelyoun had
resigned, is misplaced since the audit fails to address whether the
Tribe received HHS funds during Mr. Bettelyoun's employment. See
Tr. 1096. In addition, HHS' arguments on the official nature of
the HHS publication excerpted in its exhibit 17c (Tr. 1097 - 98 and
HHS Reply at 44 - 45) do not compensate for the fact that the
information contained in the publication shows only that HHS funds
were "obligated" to the Tribe during the U.S. Government's 1988
fiscal year (the period from October 1, 1987 to September 30,
1988). HHS Ex. 17c at 1.
The publication does not give the precise dates of obligation or
the precise periods within the 1988 fiscal year that are covered by
the funds obligated by HHS. Nor does the publication purport to
list only those funds that were obligated by HHS for the entire 12
months of the 1988 federal fiscal year. Therefore, I cannot equate
HHS' having obligated funds for the Tribe during a 12-month long
fiscal period with HHS' having obligated or given funds to the
Tribe during or for the specific two month and 12 day period in
which the Tribe allegedly engaged in unlawful discrimination
against Mr. Bettelyoun.
I find no basis in the law for concluding that, if the Tribe
received HHS funds during a period predating the alleged acts of
discrimination, the Tribe thereby incurred a continuing prospective
obligation to conduct itself in accordance with section 504 of the
Rehabilitation Act at all times in the future. Nor do I find any
basis for concluding that, if HHS provided funding to the Tribe
after Mr. Bettelyoun left the Tribe's employ, HHS would then
acquire the right to apply the proscriptions of section 504
retroactively and require the Tribe to remedy actions that were
taken when no HHS money was involved. One of the controlling
phrases in Section 504 is "subjected to discrimination under any
program or activity receiving Federal financial assistance." 29
U.S.C. 794. This means that, for the discrimination to be
actionable and reviewable in this proceeding, the discrimination
must have taken place when the Tribe was in receipt of HHS funds --
even if the Tribe had received HHS funds for a prior or subsequent
period. Thus, the publications introduced by HHS miss the mark and
fail to prove jurisdiction.
E. Other witness testimony cited by HHS also fails to establish
jurisdiction.
HHS argues that the testimony of the RDO's director, Earl Bordeaux,
Jr., and the Tribal Chairman, Alex Lunderman, supports its
contention that the Tribe received HHS funds during Mr.
Bettelyoun's employment. HHS Posthrg. Br. at 52; HHS Reply at 45.
The cited testimony does not support HHS' position.
The portion of Mr. Bordeaux's testimony relied on by HHS did not
address when HHS funds were received by the Tribe. For example,
Mr. Bordeaux testified that his office had been seeking funding
from HHS. Counsel for HHS then asked him if the Tribe actually
received HHS funds for a particular grant proposal for the homeless
mentioned in Tribe Exhibit 6 (a quarterly report prepared by Mr.
Bordeaux on July 20, 1988, concerning the activities of the RDO).
Tr. 983 - 84. Mr. Bordeaux answered in the affirmative and
explained that 1988 was the first year such funds had been
requested. Tr. 984 - 85.
However, HHS did not then ask when the funds for the homeless were
received by the Tribe. The exhibit merely indicates that Mr.
Bordeaux did not expect to know the status on the proposal until
August of 1988. Tribe Ex. 6 at 2. Mr. Bordeaux's subsequent
quarterly report, covering the period from July to September 1988,
announced Mr. Bettelyoun's resignation and the receipt of federal
funds from agencies other than HHS; it did not indicate that the
Tribe had received HHS funds for the homeless as of September 1988.
Tribe Ex. 7 (duplicated by HHS Ex. 14b 12/). No evidence of record
shows the dates during which HHS provided funds for this homeless
program.
Mr. Bordeaux's testimony also does not establish that the Tribe was
receiving Low Income Home Energy Assistance Program (LIHEAP) funds,
administered by HHS, during Mr. Bettelyoun's employment. Tr. 985
- 86. The report indicates that Mr. Bordeaux's department was
drafting a grant proposal for certain components of the Tribe:
"Currently we are assisting LIEAP and Alcohol Rehab with a proposal
to request additional funding." Tribe Ex. 6 at 2 (emphasis added).
Counsel for HHS asked Mr. Bordeaux if the requested funding was
from "the Department of Health and Human Services." Tr. 985. Mr.
Bordeaux answered, "Yes. That's the local funding program." Id.
(emphasis added).
Without asking Mr. Bordeaux for clarification (and without
explaining to him that the question had referred to the federal
agency, not a state or local agency with the same name), 13/ HHS
proceeded to ask if it would be correct to think that the Tribe was
"already receiving such funding as of July 20th, 1988." Tr. 985 -
86 (emphasis added). Mr. Bordeaux answered as follows:
Yes.
* * *
Our LIEAP program, we currently get funding through the State,
which is never enough. So we always have to look for more.
Tr. 986 (emphasis added). Such testimony by Mr. Bordeaux also does
not give support to HHS' contention that the Tribe received any
funds from HHS for "LIEAP" during Mr. Bettelyoun's employment.
However, after referring to such testimony from Mr. Bordeaux
concerning "LIEAP" (Tr. 986; Tribe Ex. 6 at 2), HHS proceeded to
argue:
The Tribe received LIHEAP block grants amounting to
$413,476.00 between October 1, 1987 and September 30, 1988. DHHS
Ex. 17(a).
HHS Posthrg. Br. at 52 (emphasis added). I was not persuaded that
Mr. Bordeaux's references to "LIEAP" (made in conjunction with
"Alcohol Rehab") were related to the "LIHEAP" cited by HHS.
The
two acronyms are different. Moreover, as earlier discussed, the
publication relied upon by HHS indicates that LIHEAP funds were
given to "Rosebud Sioux Tribal Council," while other funds were
given to "Rosebud Sioux Tribe." HHS Ex. 17c at 4. The Tribe
denied that the Tribal Council received LIHEAP or other funds.
Tribe RRA No. 6. HHS has not proven by a preponderance of the
evidence that, during Mr. Bettelyoun's employment, HHS gave LIHEAP
funds to the Tribal Council, or that the Tribe received such LIHEAP
funds.
Perhaps realizing that Mr. Bordeaux's references to "LIEAP" should
not be equated with HHS' "LIHEAP" program, HHS next argued in its
reply brief that Mr. Bordeaux had testified to the Tribe's having
received alcohol rehabilitation funds from HHS. HHS Reply at 45.
As I have already noted, the context in which Mr. Bordeaux
discussed "LIEAP" makes it possible that alcohol rehabilitation
funds were involved. However, Mr. Bordeaux's testimony did not
indicate that such funds were solicited or obtained from HHS, the
federal entity, during the two month and 12 day period of alleged
discrimination against Mr. Bettelyoun. See Tr. 983 - 86.
In addition, HHS' contention that Mr. Lunderman confirmed the
accuracy of the information contained in HHS' Exhibit 17c and the
Tribe's receipt of LIHEAP funds is not supported by the record.
HHS Reply at 45 (citing Tr. 1125 - 26). Viewing Mr. Lunderman's
testimony in context, I find that Mr. Lunderman did not confirm
either proposition for HHS. Upon being shown HHS' Exhibit 17c, he
acknowledged that he had had an opportunity to look at it and
stated,
There is no question where the money comes from. What's the
big deal?
Tr. 1125. On being asked if the Tribe received the money, his
answer was,
Not the Tribe, but IHMI [Indian Health Management, Inc.] did.
Id. Then Mr. Lunderman answered "yes" to this ambiguous question
posed by HHS:
This [HHS Ex. 17c] says the Rosebud Sioux Tribal Council and
this says the Rosebud Sioux Tribe. Did they get these -- you
receive low income energy assistance?
Id. Mr. Lunderman's "yes" answer could have indicated his personal
receipt of low income energy assistance, his receipt of it on
behalf of the Tribe, his receipt of it on behalf of the Tribal
Council, all of the foregoing possibilities, or a combination of
some of the foregoing possibilities. Moreover, Mr. Lunderman's
affirmative response does not establish the Tribe's receipt of any
HHS funds during the two months and 12 days of alleged
discrimination against Mr. Bettelyoun. At best, the response HHS
elicited from Mr. Lunderman to its ambiguous question created the
possibility that the Tribe might have received low income energy
assistance from HHS at some time during the 12-month federal fiscal
accounting period.
As already discussed, HHS' Exhibit 17c, even if its accuracy had
been confirmed by Mr. Lunderman, does not show that HHS had given
funds to the Tribe during or for the two months and 12 days from
June 14 to August 25, 1988. Since HHS does not contend that the
Tribe had discriminated against Mr. Bettelyoun during any other
time in the 1988 federal fiscal year, HHS cannot prove the
existence of jurisdiction over the alleged acts of discrimination
against Mr. Bettelyoun by merely showing that at some time within
the 12-month period specified in its Exhibit 17c, HHS had given
money to the Tribe.
F. The Assurances of Compliance of record do not establish
jurisdiction.
HHS relies upon the fact that the Tribe signed the four Assurances
of Compliance of record to argue that there exists jurisdiction
over the Tribe's actions against Mr. Bettelyoun from approximately
June 14 to August 25, 1988. HHS Supp. Br. at 8 - 9. There is no
dispute that the Tribe signed each of the Assurances of Compliance
relied upon by HHS. HHS Ex. 18a - d. The Tribe had so admitted
while placing HHS on notice that it disputed the legal effect HHS
has attributed to these documents. Tribe RRA No. 16, 17.
Before the hearing, HHS contended:
In signing the Assurance and accepting Federal funds, [the
Tribe] clearly obligated itself to comply with Section 504 and its
implementing regulations and was put on notice that HHS reserved
the right to enforce its terms through lawful means.
HHS Prehrg. Br. at 5 (emphasis added). Yet, HHS has introduced no
evidence to correlate any of the four Assurances it has introduced
to any HHS grant the Tribe is alleged to have received during the
disputed two months and 12 days in 1988. See HHS Ex. 18 a - d.
HHS has submitted no evidence or arguments on why or how the
Assurances of Compliance the Tribe signed on July 9, 1969, July 7,
1975, March 18, 1988, and February 28, 1990 should be construed as
establishing jurisdiction over the alleged acts of discrimination
that took place between June 14 and August 25, 1988. See HHS Ex.
18a - d. Instead, HHS argued that the documents plainly state
that they were submitted "for the purpose of obtaining any and all
federal grants, loans, contracts ..., property, discounts, or other
federal financial assistance extended by the Department of Health
and Human Services." HHS Supp. Br. at 8 (quoting HHS Ex. 18a - d).
I do not read these Assurances of Compliance as having created an
obligation for the Tribe to be bound by section 504 of the
Rehabilitation Act and HHS' implementing regulations since at least
July 9, 1969, the earliest date shown on the Assurances of
Compliance submitted by HHS. In the context of the total record
containing the many other conflicts in HHS' evidence on
jurisdiction, I particularly do not find that any of these
Assurances of Compliance establishes that the Tribe received HHS
funds during the period from June 14, 1988 to August 25, 1988.
By itself, an Assurance of Compliance does not prohibit
discrimination on the basis of handicap and does not enable HHS to
seek enforcement of its provisions. The document is subject to the
following caveats and conditions that are readily apparent from the
face of the Assurances of Compliance executed by the Tribe and the
clear language of the relevant regulations:
- an Assurance of Compliance is to be signed by an applicant
for federal financial assistance from HHS;
- the Tribe's execution of an Assurance of Compliance does
not signify that HHS has already extended federal financial
assistance to the Tribe;
- an Assurance of Compliance does not specify when, if, or
for what duration HHS will extend financial assistance;
- the Tribe's obligations under the Assurance of Compliance
arise only if HHS extends federal financial assistance;
- the Tribe's obligations under the Assurance of Compliance
last only for the period during which federal financial assistance
is extended by HHS to the Tribe.
45 C.F.R. 84.5(a), (b); HHS Ex. 18a, b., c - 1, d. The Tribe
has no duty to comply with the terms of any Assurance it has
executed unless, until, and for only so long as HHS extends
financial assistance to the Tribe. Such limitations are in accord
with section 504 of the Rehabilitation Act, which prohibits only
subjecting an otherwise qualified handicapped individual to
discrimination, solely by reason of handicap, "under any program or
activity receiving Federal financial assistance." 29 U.S.C.
794.
Here, HHS appears to rely on Assurances of Compliance to establish
jurisdiction, but it failed to submit credible and reliable proof
that HHS actually awarded federal assistance to the Tribe that
would give rise to the Tribe's obligations under a particular
Assurance of Compliance for the period June 14 to August 25, 1988.
None of the Assurances of Compliance relied upon by HHS identifies
the program, activity or application for which they were submitted.
HHS has never attempted to show that the Assurances of Compliance
of record accompanied applications that were successful.
Consequently, I cannot find that any of the Assurances of
Compliance of record obligated the Tribe to refrain from taking the
actions that HHS alleges discriminated against Mr. Bettelyoun.
Even if I were to assume that the Tribe's Chairman signed the
Assurance of Compliance dated March 18, 1988 in support of the
Tribe's grant application to HHS dated May 2, 1988 (HHS Ex. 18c at
1, 2), 14/ the evidence is still insufficient for me to conclude
that the Tribe thereby became obligated to refrain from engaging in
those acts of employment discrimination proscribed by section 504
of the Rehabilitation Act and the agency's implementing regulations
during the period from June 14 to August 25, 1988. HHS' evidence
concerning the March 18, 1988 Assurance of Compliance and the May
2, 1988 grant application is ambiguous, incomplete, and
conflicting.
First, HHS has submitted nothing that establishes HHS' extension of
financial assistance to the Tribe pursuant to the May 2, 1988 grant
application or the March 19, 1988 Assurance of Compliance. The
grant application seeks $25,000 for a program called "Runaway and
Homeless Yt," which lists a proposed starting date of July 1, 1988
(HHS Ex. 18c at 2); the HHS publication indicates an obligation of
$25,000 in HHS funds during the 1988 fiscal year for "ADM CHILD
YOUTH & FAM. - RUNAWAY & HOMELESS YOUT." HHS Ex. 17c at 4.
However, the HHS publication does not show the dates during which
HHS extended the $25,000 to the Tribe.
Inferences from other evidence also introduced by HHS conflict with
the possibility that the Tribe's May 2, 1988 application resulted
in funding from HHS on or before August 25, 1988. HHS introduced
Mr. Bordeaux's quarterly annual report dated July 20, 1988, in
which he stated that he did not yet have a reply to the grant
proposal his office submitted to HHS concerning a program for the
homeless. HHS Ex. 14a at 2. (I assume he is referring to the
program identified in the Tribe's application dated May 2, 1988.
HHS Ex. 18c at 2.) Mr. Bordeaux expected to receive a reply to
that proposal in August of 1988; however, in another report also
submitted by HHS, covering the period from July through September,
1988, Mr. Bordeaux did not mention having received approval for the
proposal. HHS Ex. 14b. The omission in Mr. Bordeaux's second
report implies that no funds for the homeless project had been
received by the Tribe prior to Mr. Bettelyoun's resignation on
August 25, 1988. HHS made no attempt to show that the Tribe's
application dated May 2, 1988 was in fact funded by HHS during the
period from June 14 to August 25, 1988.
Also, other evidence introduced by HHS supports a conclusion that
the "Runaway and Homeless Yt" program proposed by the Tribe in its
May 2, 1988 application was never approved for funding. There are
two different amounts of federal funds listed on the Tribe's
application form: $25,000 appears to be the amount sought by the
Tribe, and $7074 appears to be the amount approved by HHS. HHS Ex.
18c at 2. However, the amount of $7074 does not appear anywhere in
the HHS publication of funds obligated during the 1988 federal
fiscal year (October 1, 1987 to September 30, 1988). See HHS Ex.
18c at 2, 17c at 4. HHS did not explain the meaning of the $7074
amount or why that amount does not appear in the publication
introduced by HHS to establish jurisdiction.
In addition to the previously-discussed shortcomings in HHS' proof
concerning the issue of whether the Tribe received HHS money during
the two month and 12 day period of alleged discrimination, I note
that the publication relied upon by HHS is reporting on the funds
"obligated" by HHS during the 12-month period of the 1987 federal
fiscal year, whereas the regulation specifies compliance with the
non-discrimination provisions of the law "for the period during
which Federal financial assistance [from HHS] is extended pursuant
to the application." HHS Ex. 17c at 2 (emphasis added); 45 C.F.R.
80.4(a) (emphasis added). The HHS publication does not define the
term "obligated," and it does not state for what period of time any
of the HHS funds remained "obligated."
HHS has not explained what is meant by "obligated," as opposed to
"extended." There is no evidentiary basis in the record for me to
conclude that, when HHS funds are "obligated," within the meaning
of HHS Ex. 17c, they are also simultaneously "extended" to the
grant applicant within the meaning of the regulation. Nor is there
any evidence of record which suggests that HHS only "obligates" its
funds for all 12 months of each federal fiscal year. HHS offered
no proof that the funds identified in the HHS publications were
actually "obligated" or "extended" to the Tribe for each
of the 12
months from October 1, 1987 to September 30, 1988. HHS offered
nothing to show that it will only approve grant applications for
full 12-month periods or that the duration of the programs that
receive HHS funds must coincide with the federal fiscal year. HHS
failed to submit any proof in support of its apparent theory that,
as long as HHS funds were "obligated" during the 12 months of the
1988 federal fiscal year, then HHS money was "extended" to and
received by the Tribe during the two months and 12 days of alleged
discrimination against Mr. Bettelyoun.
For all of the above reasons, I conclude that the compliance
proceeding must be dismissed.
II. If HHS had established the existence of jurisdiction, I would
find that HHS is entitled to proceed to a decision on the merits of
its allegations notwithstanding the unreasonable delay incurred by
Mr. Bettelyoun in filing his complaint with OCR.
If the Tribe were obligated to conduct itself in accordance with
section 504 of the Rehabilitation Act during the period in
controversy, I would need to decide whether this compliance
proceeding is time-barred.
HHS' present enforcement action against the Tribe was precipitated
by the written complaint Mr. Bettelyoun sent to OCR some 16 months
after he had allegedly suffered discrimination in a job he had held
for less than three months. HHS Ex. 19; Tribe Ex. 5, 8. At a
prehearing conference, I denied the Tribe's motion to dismiss due
to the timing of Mr. Bettelyoun's complaint. See May 21, 1993
letter confirming ruling. The parties therefore introduced
evidence on the timeliness issue.
Having now reviewed OCR's authority to pursue investigations in the
context of all the evidence introduced by the parties on the
timeliness issue, I reaffirm my earlier ruling that this proceeding
is not barred because of Mr. Bettelyoun's delay in filing his
complaint with OCR. I modify my ruling only to the extent of adding
the following:
- The Tribe has proven its assertion that Mr. Bettelyoun's
complaint to OCR was filed many months outside the 180 day period
specified in the regulations.
- Were I delegated the authority for determining de novo
whether to waive the 180-day filing period, I would not have
accepted Mr. Bettelyoun's reasons for delay at face value or found
them persuasive.
- The Regional Manager for OCR was delegated the discretion
to decide whether to waive the filing period for complaints such as
Mr. Bettelyoun's.
- I lack authority to modify the OCR Regional Manager's
exercise of her discretion to accept Mr. Bettelyoun's complaint for
investigation.
- Whether or not OCR should have accepted Mr. Bettelyoun's
complaint for filing, the Tribe has not proven that OCR was without
authority to take action against the Tribe by treating the contents
of Mr. Bettelyoun's complaint as "other information" of
non-compliance under 42 C.F.R. 80.7(c).
A. OCR accepted Mr. Bettelyoun's complaint for investigation
without having seriously analyzed the reasons he gave for his
delay.
There is no dispute that Mr. Bettelyoun filed a complaint with OCR
more than 16 months after he resigned from his job with the Tribe.
Mr. Bettelyoun testified at hearing that his complaint to OCR was
triggered by a meeting with an OCR official in December of 1989.
In mid-December 1989, he met Ms. Vada Kyle-Holmes, Regional Manager
for OCR's Region VIII, at an HHS workshop in Washington, D.C.,
where he was making a presentation to top government leaders on the
topic of AIDS and discrimination with the then Secretary of HHS,
Dr. Louis Sullivan. Tr. 169. According to Mr. Bettelyoun, Ms.
Kyle-Holmes approached him after his presentation, asked if he knew
of section 504 of the Rehabilitation Act, and asked him to call her
to discuss the possibility of his civil rights having been
violated. Tr. at 170, 620. After holding such a discussion with
her, Mr. Bettelyoun sent OCR a written complaint dated December 28,
1989. HHS Ex. 19.
HHS introduced the testimony of Ms. Kyle-Holmes, who said she
accepted Mr. Bettelyoun's allegations of delay at face value. Tr.
630 - 31; 634 - 35.
As relevant here, waiver of the 180-day filing period is
appropriate under OCR's published criteria where "[t]he
complainant could not reasonably be expected to know the act
complained of was discriminatory within the 180 days," or "[o]ther
reasons for which the Regional Manager provides appropriate
justification." HHS Ex. 27 at 9. Ms. Kyle-Holmes decided to
exercise her delegated discretion by accepting Mr. Bettelyoun's
reasons for the delay at face value in waiving the 180 day filing
deadlines for him. Tr. at 630 - 31, 634 - 35; HHS Ex. 19, 27, 28.
Ms. Kyle-Holmes felt herself capable of rendering an impartial
determination and did not believe she had any personal involvement
in Mr. Bettelyoun's case. Tr. at 630, 634 - 35. 15/
Ms. Kyle-Holmes' "Justification for Waiver of Timeframe for Filing
of Complaint" incorrectly attributed to the complaint an allegation
that Mr. Bettelyoun was unaware of the law prohibiting
discrimination on the basis of handicap until he appeared at the
HHS-sponsored conference in December 1989. HHS Ex. 28 at 1. Mr.
Bettelyoun did not allege in his complaint to OCR that he was
unaware of section 504 of the Rehabilitation Act until he attended
the HHS-sponsored conference. HHS Ex. 19. In fact, his testimony
indicated that he was generally aware of his rights under the law
and could have made inquiries concerning the enforcement of such
rights if he had wished. 16/
In his complaint, Mr. Bettelyoun alleged that he did not take any
"direct action" (e.g., file a complaint with OCR) against the Tribe
at the time the discrimination took place because he feared
banishment by the Tribe's former administration. HHS Ex. 19. Ms.
Kyle-Holmes accepted this allegation as a justification for the
delayed filing of his complaint. HHS Ex. 28.
If Ms. Kyle-Holmes had had the benefit of Mr. Bettelyoun's
testimony at hearing and of the other evidence presently of record,
she should have found not credible his allegation that fear of
banishment by the prior Tribal administration deterred him from
filing a complaint with OCR for 16 months. For example, the
hearing evidence shows that, as early as June 28, 1988, Mr.
Bettelyoun had retained counsel for possible litigation against the
Tribe and had so informed his supervisor. Tr. 82 - 84. Before and
after his resignation from his job with the Tribe, he had been
making speeches in public to describe his experiences after he was
diagnosed with the HIV infection. Tr. at 151 - 53, 379, 647, 661,
666, 721; HHS Ex. 39. Such speeches included allegations that he
was subjected to discrimination while employed by the Tribe. Tr.
1017.
In addition, Mr. Bettelyoun filed a lawsuit that publicized the
Tribe's alleged discrimination against him. During August of 1989,
four months before Mr. Bettelyoun filed his complaint with OCR, he
sued the federal government to recover several hundred thousand
dollars in damages that allegedly resulted from the release of his
medical information by the IHS hospital in Rosebud (IHS Hospital).
Complaint in Bettelyoun v. U.S. attached to Tribe's Mem. Supp. Aff.
Def. Mr. Bettelyoun alleged, inter alia, that he was caused to
feel humiliation, shame, and emotional distress, and to lose two
jobs (his full time one with the Tribe and his part time one with
a video store 17/) and to become unemployable. Id. Mr.
Bettelyoun's undertakings to publicize the Tribe's alleged
discrimination against him belie his allegation that he feared
banishment by the Tribe if he filed a complaint with OCR.
Also contradicting Mr. Bettelyoun's alleged fear of banishment by
the Tribe's former administration is the fact that the Tribe's
former administration awarded him a sole source consulting contract
of $4000 during May of 1989, after Mr. Lunderman, the Tribe's
Chairman and one of the officials who allegedly discriminated
against Mr. Bettelyoun, voted in favor of the action. Tribe Ex. 9.
Mr. Bettelyoun testified that, twice in 1989, he applied for jobs
with the Tribe on his attorney's advice to mitigate damages for his
lawsuit. Tr. 160 - 63. (Mr. Bettelyoun said he was motivated also
by a desire to work. Id. at 163.) The Tribe awarded him the sole
source contract notwithstanding his allegations in court and at
public seminars that the Tribe had discriminated against him. His
alleged fear of banishment is further undercut by the fact that, in
either October of 1989 or 1990 (Mr. Bettelyoun could not recall
which one), members of the tribal community where he resided
elected him to be their leader, the Chairman of Corn Creek
Community. Tr. 372 - 73, 385. Such actions by the Tribe's former
administration and the residents of his community do not suggest
that they would have attempted to banish him from the Tribe had he
filed his complaint of discrimination with OCR within the 180 days
specified by regulation.
B. HHS brought this compliance proceeding after investigating
IHS's involvement and attempting to obtain a conviction against the
IHS physician who disclosed Mr. Bettelyoun's medical condition to
Mr. Bettelyoun's supervisor.
Ms. Kyle-Holmes' reasons for accepting Mr. Bettelyoun's complaint
for investigation included her concern that another component of
HHS, the Public Health Service (PHS), may have been involved in a
criminal violation of Mr. Bettelyoun's privacy rights. HHS Ex. 28
at 2. Mr. Bettelyoun's complaint alleged that IHS, a component of
PHS, had released medical information to the Tribe without his
authorization and thereby precipitated the employment
discrimination he then experienced from the Tribe. HHS Ex. 19.
She made a policy determination that, due to the involvement of PHS
and IHS, the 180-day filing period should be waived for Mr.
Bettelyoun's complaint.
In response to Mr. Bettelyoun's allegations against IHS and its
doctors, HHS' Inspector General conducted a criminal investigation,
and OCR decided to await the Inspector General's findings before
investigating Mr. Bettelyoun's allegations against the Tribe. HHS
Ex. 29.
On July 17, 1990, seven months after Mr. Bettelyoun filed his
complaint with OCR, the government reached a settlement with Mr.
Bettelyoun concerning IHS's alleged infringements of his privacy
rights. The government paid $30,000 in exchange for Mr.
Bettelyoun's seeking dismissal of the lawsuit and waiving any other
right of recovery arising out of the incidents he alleged.
Attachment to Tribe's Mem. Supp. Aff. Def. 18/
OCR conducted its investigations of the Tribe from at least
February of 1991 until some time before September 26, 1991. E.g.,
HHS Ex. 25, 31. On September 26, 1991, HHS, by Ms. Kyle-Holmes of
OCR, notified the Tribe that its investigation found discrimination
against Mr. Bettelyoun "on the basis of [his] handicap" 19/ and
required the Tribe to take corrective actions that included
reinstating Mr. Bettelyoun and making him "whole." HHS Ex. 31.
There followed several months of failed negotiations between the
Tribe and OCR on matters that included reinstating Mr. Bettelyoun
and making him "whole" with back pay. Tribe Ex. 10 - 13; Notice at
9 - 11.
On October 14, 1992, the United States failed to obtain a
conviction under the Privacy Act against Dr. Wayne Foster, the IHS
physician who had released medical information concerning Mr.
Bettelyoun's HIV infection to Mr. Bordeaux. Tribe Ex. 29. The
court ordered acquittal of the physician because it found Mr.
Bordeaux more credible than Mr. Bettelyoun. Id. at 7 - 8. The
judge cited his personal observations of the witnesses, as well as
the written medical records that corroborate Mr. Bordeaux's
testimony. Id. The court therefore concluded that Mr. Bettelyoun
had given his consent for Dr. Foster to release the medical
information at issue.
Less than one month after the court ordered acquittal of the IHS
physician, HHS declared that its negotiations with the Tribe had
failed and, on November 6, 1992, filed its Notice of Opportunity
for Hearing. Notice at 9 - 10; HHS PF No. 31, 32.
C. OCR had the authority to conduct investigations based on
information of non-compliance, and HHS' authority to initiate
compliance proceedings does not depend on timely filed complaints
by individuals.
Even though I would have reviewed Mr. Bettelyoun's waiver request
differently and, with benefit of the record now before me, reached
a different determination on whether to accept his complaint
against the Tribe for investigation, the discretion to decide these
issues was delegated to the Regional Manager of OCR, not to me. In
addition, the Regional Manager properly considered the policy
question of public perception should OCR reject a complaint that
included allegations against a PHS/IHS employee. HHS Ex. 28. Her
approach was consistent with her authority to grant a waiver of the
180-filing period for the reasons she believes to be justified.
HHS Ex. 27 at 9.
Whether or not OCR had waived the 180-day filing period for Mr.
Bettelyoun's complaint, OCR could have conducted an investigation
and brought an enforcement proceeding against the Tribe by
construing Mr. Bettelyoun's allegations as information of the
Tribe's non-compliance with Section 504. See, 45 C.F.R.
80.7(c). The filing period identified by the Tribe does not apply
to "other information" of non-compliance. Id. OCR's Regional
Manager, Ms. Kyle-Holmes, described the "compliance review" that
can be initiated by OCR based on information derived from
newspapers and other sources. Tr. 648 - 49. She testified that
the processes are basically the same for OCR's compliance reviews
and for investigations of complaints filed by individuals. Tr.
649. If OCR found violations and injured parties pursuant to its
compliance review, it would seek relief in much the same manner as
in like cases involving an individual's complaint. Tr. 650.
Pursuant to a compliance review, OCR has the authority to initiate
enforcement proceedings like the one before me. Tr. 650 - 51.
The Tribe has not shown that the Regional Manager of OCR acted
outside the scope of her authority. Nor has the Tribe shown that
an investigation or enforcement proceeding could not have been
brought had OCR refused to accept Mr. Bettelyoun's submission as a
complaint and, instead, construed it as "other information" of
non-compliance with section 504 of the Rehabilitation Act.
Therefore, even though there exists factual support for the Tribe's
allegations of untimeliness concerning Mr. Bettelyoun's complaint,
the Tribe is not entitled to dismissal of this enforcement action
as a consequence.
III. If I had the authority to proceed to the merits of the
discrimination alleged by HHS, I would find that HHS has failed to
prove by a preponderance of the evidence that Mr. Bettelyoun has
been a qualified handicapped person at all times relevant to this
proceeding.
A. Despite ample opportunity to overcome the evidentiary
deficiencies on the issue, HHS has failed to do so.
HHS acknowledges that, to prevail on a claim of handicap
discrimination under section 504 of the Rehabilitation Act, HHS
must show that Mr. Bettelyoun has a handicap and is otherwise
qualified for the employment at issue. HHS Posthrg. Br. at 27.
HHS' regulation defines a "handicapped person" as an individual who
(i) has a physical or mental impairment which substantially limits
one or more major life activities, (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment. 45
C.F.R. 84.4(j). A "qualified handicapped person" in the
employment context means an individual who, with reasonable
accommodation, can perform the essential functions of the job in
question. 45 C.F.R. 84.3(k)(1).
In answer to HHS' requests for admissions, the Tribe denied that
Mr. Bettelyoun was "a qualified handicapped person." Tribe RRA No.
28, 29. The Tribe denied also that infection with HIV constitutes
a handicap under section 504 of the Rehabilitation Act or that,
from June of 1988 to the present, Mr. Bettelyoun has remained a
handicapped person within the meaning of the regulations. Tribe
RRA No. 21, 26, 27.
There is no dispute that Mr. Bettelyoun was diagnosed with the HIV
infection while employed by the Tribe. HHS Ex. 11; Tribe RRA No.
23, 24. HHS' evidence shows that there is no cure for the HIV
infection, that persons with the HIV infection should take
precautions in their sexual contacts to avoid transmitting the
virus to others, that people with the infection may develop
symptoms such as memory loss, loss of coordination, partial
paralysis, or mental disorders due to the virus's effects on their
central nervous system, and people with the infection may
experience life-threatening illnesses, such as pneumonia,
meningitis, and cancer. See, e.g., HHS Ex. 21c at 7, 8. Thus, as
in The Matter of Westchester County Medical Center, DAB 1357
(1992), there is sufficient evidence of record to support HHS'
contention that Mr. Bettelyoun has a "handicap" within the meaning
of the law because, at the very minimum, he has a record of one
impairment (HIV infection) that has substantially and continuously
limited his major life function of sexual contacts since June of
1988. However, I find that HHS has failed to satisfy its burden of
proving that Mr. Bettelyoun has been a "qualified handicapped
person" within the meaning of the regulation at all times relevant
to this proceeding. 20/
On May 13, 1993, I recessed the hearing and held the record open
for the receipt of additional evidence from the parties concerning,
among other matters, the issues of Mr. Bettelyoun's credibility and
whether Mr. Bettelyoun has continued to be able to perform his job
for the Tribe. Tr. 1132 - 36. I did so after one of the Tribe's
witnesses, Mary Janis, testified that Mr. Bettelyoun had received
a retroactive award of federal disability benefits. Tr. 892.
After Ms. Janis gave such testimony, HHS acknowledged that one of
its agencies, SSA, had found Mr. Bettelyoun disabled on the basis
of an application he filed in October of 1989. See, e.g., Tr.
1134; HHS Posthrg. Br. at 33.
HHS' actions throughout the hearing process, including the evidence
it chose to offer to prove Mr. Bettelyoun's health and ability to
work, indicate to me that HHS was not surprised by the testimony
concerning SSA's payment of Social Security benefits to Mr.
Bettelyoun. Even though my pretrial order required the parties to
exchange prior statements of witnesses, HHS gave no indication that
Mr. Bettelyoun had filed an application for disability benefits
with SSA. To the contrary, HHS attempted to keep out all evidence
concerning Mr. Bettelyoun's contacts with SSA. At hearing, HHS
had, at first, successfully blocked the Tribe's efforts to question
Mr. Bettelyoun concerning SSA's treatment of him. Tr. 376 21/.
Later, HHS attempted to bar Ms. Janis from testifying on Mr.
Bettelyoun's receipt of Social Security benefits; HHS confirmed
SSA's determination of disability for Mr. Bettelyoun only after I
overruled HHS' objection to Ms. Janis's testimony. Tr. 874, 1134.
HHS brought this compliance proceeding only because OCR had failed
in its informal efforts to obtain job reinstatement and back pay
for Mr. Bettelyoun. Notice at 10 - 11, 12. Yet, neither prior to
nor during the hearing did HHS secure Mr. Bettelyoun's consent to
release all relevant medical records and Social Security payment
records. Instead, HHS obtained Mr. Bettelyoun's consent to use in
this proceeding only those medical records from the IHS Hospital
for the period from January 1988 through December 1989. HHS Ex. 9.
To support its contention in this compliance proceeding that Mr.
Bettelyoun is a qualified handicapped employee, HHS chose to
further curtail the already limited medical records made available
by Mr. Bettelyoun. From the IHS Hospital's records covered by Mr.
Bettelyoun's release form, HHS chose to introduce only two pages as
evidence: (1) a one-page face sheet to his hospitalization records
for the period from May 27 to June 5, 1988 (titled "Clinical Record
Brief" and summarizing the established diagnosis and medical
procedures used); and (2) a one-page undated pathology report
stating that Mr. Bettelyoun "should be considered to be infected
with HIV and therefore potentially infectious." HHS Ex. 10, 11.
Neither of these two pages describes Mr. Bettelyoun's symptoms, his
emotional state, or his subjective responses to the disease process
or the news of his test results. Medical records containing these
and like descriptions may be highly probative on issues such as
whether Mr. Bettelyoun was sufficiently healthy, recovered, or
mentally fit to perform his work for the Tribe reliably and
properly after he learned of his HIV infection. See, e.g., HHS Ex.
21c at 18; Tr. 597. Instead, as also discussed elsewhere in this
decision, HHS sought to establish Mr. Bettelyoun's good health and
fitness for work by using his own statements and the opinions of
physicians who reviewed medical records and charts not released by
Mr. Bettelyoun. See, e.g., Tr. 1071 - 72. By not securing Mr.
Bettelyoun's consent to make available all relevant underlying
medical records, HHS precluded the Tribe from seeking opinions from
other experts concerning Mr. Bettelyoun's health or limitations.
Also, HHS' omission (or Mr. Bettelyoun's refusal) insulated the
testimony and opinion evidence favorable to HHS from being
challenged with use of documented medical signs or findings.
Given HHS' evidence on Mr. Bettelyoun's health and ability to work,
I had serious concerns about the soundness of HHS' assertion that
Mr. Bettelyoun is a qualified handicapped individual, especially
after hearing the information concerning Mr. Bettelyoun's receipt
of disability benefits. Such information strongly implies that HHS
has in its possession Mr. Bettelyoun's allegations and proof to the
Social Security Administration that he has been unable to perform
his past work as well as all other work, as specified by the
definition of disability at 42 U.S.C. 423(d)(2). The Social
Security Act and the regulations would not have permitted the
Secretary to make an award of disability benefits to Mr. Bettelyoun
if he had not filed a written application for such benefits and
satisfied his burden of proving to the agency that he has been
unable to work. See, e.g., 42 U.S.C. 423(a)(1); 20 C.F.R.
404.315(b)-(d), 404.316, 404.1505, 404.1512 - .1516.
Therefore, to give Mr. Bettelyoun and HHS the benefit of the doubt,
I allowed HHS additional time specifically to develop the issue of
how Mr. Bettelyoun's receipt of disability benefits from HHS under
the Social Security Act might affect HHS' contention in this
compliance proceeding that Mr. Bettelyoun has remained able to
perform his past work for the Tribe notwithstanding his HIV
infection. Tr. 1128 - 1136.
Even though HHS did not explain why it had not previously obtained
Mr. Bettelyoun's written release and testimony on these issues, HHS
anticipated that Mr. Bettelyoun would give HHS his consent to
release his Social Security records for review by the Tribe and me
and that he would also give additional testimony thereafter. Id.
HHS was wrong in its predictions.
I ordered the evidentiary record closed on September 28, 1993. The
letter of that date summarizes the parties' unsuccessful efforts to
supplement the record, including HHS' inability to secure Mr.
Bettelyoun's consent to release his Social Security records and
HHS' inability to contact Mr. Bettelyoun.
In its posthearing submissions, HHS asks me to accept as true the
testimony by Mr. Bettelyoun and Dr. Jereb that Mr. Bettelyoun was
able to work without restrictions at his job with the Tribe
beginning on June 6, 1988, despite his having experienced symptoms
that were so severe that he was admitted to the IHS Hospital
through its emergency room on May 27, 1988 and remained
hospitalized there until June 5, 1988, the day before he began
working for the Tribe. HHS PF No. 16, 17, 24. HHS asked me also
to accept as true Mr. Bettelyoun's contention that his HIV
infection has never affected his ability to work and that he has
never felt unable to work due to his health. HHS PF No. 23. Mr.
Bettelyoun so testified even though he also recalled Dr. Jereb's
prognosis on June 14, 1988 that he might live for only two more
months. Tr. 72, 74.
With respect to Mr. Bettelyoun's disability status, HHS argues that
Mr. Bettelyoun's receipt of Social Security disability benefits
does not negate his status as a qualified handicapped person under
the Rehabilitation Act. HHS Posthrg. Br. at 33 - 39. HHS posits,
inter alia, that Mr. Bettelyoun "is" presently a qualified
handicapped person under the Rehabilitation Act (Id. at 27)
because: (1) he is qualified for the position of Assistant
Director/Senior Planner, and (2) he satisfies the objective
criteria for said position. Id. at 27 - 39.
HHS contends that the Social Security Administration's
instructional manual "required SSA claims adjustors to construe HIV
infection as equivalent to conditions included in SSA's regulatory
Listing of Impairments so as to render an applicant with HIV
presumptively disabled and eligible for benefits, without inquiry
into the applicant's ability to work." HHS PF No. 83. According
to HHS, Mr. Bettelyoun would have been "conclusively presumed to be
disabled under the Act, and thus, entitled to benefits without
inquiry into his ability to work." HHS Posthrg. Br. at 34. HHS
then uses the term "disability" and "handicap" interchangeably
in
discussing the Rehabilitation Act and OCR's actions. Id. at 27;
22/ HHS PF No. 84 - 91.
The Tribe lodges various objections to the assertions made by HHS,
including the absence of any evidence concerning what SSA in fact
did (e.g., whether or when SSA made a factual determination
concerning Mr. Bettelyoun's ability to perform his past work for
the Tribe), and the absence of an opportunity to independently
verify the accuracy of HHS' facts and conclusions. Tribe Reply at
13 - 15. The Tribe points out also that Mr. Bettelyoun's receipt
of Social Security disability benefits calls into question his
ability to perform the essential job functions of the RDO work, and
that HHS has provided no evidence that he was or remains able to
perform such functions. Id. at 15. 23/ The Tribe asks that I draw
adverse inferences from Mr. Bettelyoun's failure to cooperate with
HHS to permit disclosure of the relevant records in these
proceedings. Id. at 13 - 14. The Tribe's arguments have merit.
I agree that HHS' contentions about Mr. Bettelyoun's disability do
not substitute for evidence. Even without considering the legal
merit of HHS' arguments on Mr. Bettelyoun's disability status, I
find that HHS' proof of Mr. Bettelyoun's continued good health on
and after June 6, 1988 is suspect and not fully consistent with
other evidence of record. 24/ Mr. Bettelyoun has always had an
interest in the outcome of this compliance action. The proceeding
was brought by HHS only after the Tribe refused to reinstate him to
his former job and provide him with back pay, and a finding of
discrimination could induce the Tribe to meet such demands in lieu
of having all HHS funds denied or terminated. Under these
circumstances, Mr. Bettelyoun's failure to authorize the release of
his Social Security records and his subsequent unavailability as a
witness further undercut his own credibility and give rise to
negative inferences concerning his state of health.
In addition, Dr. Jereb acknowledged his inexperience and lack of
training in treating patients with the HIV infection. HHS Ex. 23
at 14; Tr. 322. Prior to treating Mr. Bettelyoun, Dr. Jereb's only
AIDS patients had been hemophiliac children of very young ages in
Los Angeles when AIDS was being discovered. Id. He cared for
these very young children without knowing why they became sicker;
he later learned that they had been infected with the HIV virus
from contaminated blood. Id. Even though Dr. Jereb may have been
of the opinion that Mr. Bettelyoun was physically capable of
working after June 6, 1988, Dr. Jereb did not address the possible
limitations that may have resulted from Mr. Bettelyoun's mental
condition. The Surgeon General's Report introduced by HHS shows
that there tend to be significant mental health implications, such
as anxiety and depression, associated with the HIV infection. HHS
Ex. 21c at 18. 25/ Dr. Mark Babitz, a witness for HHS, testified
that the mental or psychological conditions of people with the HIV
infection vary from mild concern to major depression and even
suicide. Tr. 597. Dr. Jereb is not a mental health practitioner.
He is a medical epidemiologist currently employed by HHS' Centers
for Disease Control, in the division of Tuberculosis Elimination.
Tr. 309. When he cared for Mr. Bettelyoun in 1988, Dr. Jereb was
the general medical officer and pediatrician for the Rosebud IHS
Hospital. Tr. 311.
HHS' medical evidence even fails to establish credibly whether Mr.
Bettelyoun's HIV infection had become symptomatic before he began
his job with RDO. For example, the Surgeon General's Report notes
that AIDS-Related Complex (ARC) is a condition caused by the HIV
virus, and it has a specific set of clinical symptoms, such as loss
of appetite, weight loss, fever, night sweats, skin rashes,
diarrhea, and fatigue. HHS Ex. 21c at 7. The Surgeon General
warns that the foregoing are also signs and symptoms of other
diseases. Id. Here, Mr. Bettelyoun testified that he was
experiencing several of these symptoms when he was admitted to the
IHS Hospital in June of 1988. E.g., Tr. 59 - 62. The doctor gave
a diagnosis of aseptic meningitis before he received Mr.
Bettelyoun's test results for HIV. HHS Ex. 10. The medical
evidence of record does not rule out the possibility that he was in
fact suffering from ARC as early as June 1988. There is no
accurate account of Mr. Bettelyoun's medical impairments and their
resulting effects to support HHS' contention that Mr. Bettelyoun
has been a qualified handicapped individual at all times relevant
to this proceeding.
HHS has failed also to introduce any evidence to eliminate the
glaring logical inconsistency that exists between its position
concerning Mr. Bettelyoun's status as a qualified handicapped
person and its finding that he is disabled from working. I am
aware that HHS has not disclosed the onset date of Mr. Bettelyoun's
disability as determined by the agency, and HHS has not confirmed
Mr. Bettelyoun's receipt of retroactive benefits under Title II of
the Social Security Act pursuant to his October, 1989 application.
HHS Posthrg. Br. at 33 & n. 16. (Ms. Janis's testimony indicated
a retroactive award. Tr. 892.) However, HHS relied on the
diagnosis of aseptic meningitis, made on June 5, 1988, and the
positive HIV test results, also dated June 1988, as dispositive
evidence of Mr. Bettelyoun's disability due to AIDS. HHS Posthrg.
Br. at 38; 26/ HHS Ex. 10, 11. Disability, as acknowledged by HHS,
denotes the individual's inability to engage in any substantial
gainful activity by reason of a medically determinable impairment.
HHS Posthrg. Br. at 36, n. 18.
Accepting HHS' theory, Mr. Bettelyoun should have been incapable of
working, due to his medical problems, since June 1988, when he was
still working for the Tribe. Yet, after introducing the diagnoses
of HIV infection and aseptic meningitis that have allegedly
rendered Mr. Bettelyoun incapable of performing any kind of
substantial gainful activity since June of 1988, HHS has been
advocating Mr. Bettelyoun's good health, fitness for work, and
entitlement to reinstatement by the Tribe. Especially in the face
of the very strong contrary implication of its own creation, the
evidence HHS did introduce was not sufficient to prove that Mr.
Bettelyoun has at all times been able to perform the essential
functions of the RDO job, such that he may be regarded as a
qualified handicapped person within the meaning of section 505 of
the Rehabilitation Act.
B. HHS cannot prove that Mr. Bettelyoun is a qualified handicapped
individual by intimating, posthearing, that the Tribe should have
made reasonable accommodations for him, or by contending that its
Social Security Administration determined Mr. Bettelyoun to be
disabled without having inquired into his ability to work.
1. There is no legitimate issue of reasonable accommodation
in this case.
HHS argued that Mr. Bettelyoun's receipt of Social Security
disability benefits does not negate his status as a qualified
handicapped person, for whom recipients of federal funds must
"'make reasonable accommodation to known physical or mental
limitations of an otherwise qualified handicapped ... employee
unless the recipient can demonstrate that the accommodation would
impose an undue hardship on the operation of its program.'" HHS
Posthrg. Br. at 39 (citing 45 C.F.R. 84.12(a)).
I note that before the close of the evidentiary record, there was
not even a hint from HHS that Mr. Bettelyoun might have been in
need of some reasonable accommodation to perform the essential
elements of his planner job for the Tribe. Nothing in OCR's
investigative findings indicated that the Tribe may have violated
the Rehabilitation Act by failing to provide reasonable
accommodation to Mr. Bettelyoun. Nothing of record suggests that
OCR or the Tribe had considered this issue when they discussed the
possibility of having the Tribe make Mr. Bettelyoun "whole" by
providing him with back pay and reinstatement to his prior job.
During hearing and before Ms. Janis testified about Mr.
Bettelyoun's receipt of disability benefits, HHS had elicited and
underscored Mr. Bettelyoun's testimony that he has never come to
the realization that he was unable to perform his former planning
job for the Tribe because of his health. Tr. 201. Also, HHS
introduced the testimony of Dr. Harry Brown, who last treated Mr.
Bettelyoun in January of 1992 and found him still in the
asymptomatic phase of HIV development. Tr. 1073 - 74. Dr. Brown
said that in January of 1992, he last provided standard treatment
to Mr. Bettelyoun for a respiratory infection of the kind that any
person would get from time to time. Tr. 1074. HHS elicited Dr.
Brown's opinion that Mr. Bettelyoun was not precluded by his
medical condition from performing the functions of the job he had
held with the Tribe. Tr. 1073 - 74. 27/
In addition, much of HHS' theory of discrimination in this case is
built on Mr. Bettelyoun's contention that he objected to his
supervisor's inquiries concerning the nature of his medical
condition, that he never confirmed or denied his HIV diagnosis for
his employer, and that he construed people's remarks about his
condition and their offers to help him as "harassment." See, HHS
PF No. 31, 35, 36; Tr. 76, 113, 117 - 19, 239 - 41, 271. He had
sued the United States Government because one IHS doctor had
revealed his diagnosis to his supervisor. Mr. Bettelyoun's
apparent unwillingness to make known the true nature and extent of
his handicapping condition makes unreasonable any expectation of
"reasonable accommodation." Given also that Mr. Bettelyoun has
never consented to the release of all relevant medical records,
there is no accurate information by which I or the Tribe can
evaluate his limitations or needs at the workplace.
Under the foregoing circumstances, HHS is barred from introducing
the theory that Mr. Bettelyoun is a qualified handicapped
individual because the Tribe has an obligation to make reasonable
accommodation to known mental or physical limitations of an
otherwise qualified handicapped individual. Mr. Bettelyoun does
not become a qualified handicapped individual merely because the
Rehabilitation Act requires reasonable accommodation, if
appropriate, and the Social Security Act does not prohibit an
employer from making available reasonable accommodation to any
individual. Since no real reasonable accommodation issue was ever
present in this case, and since HHS has not produced the relevant
records on Mr. Bettelyoun's disability, I find inapposite the
distinction HHS draws between the disability provisions of the
Social Security Act and the handicap provisions of the
Rehabilitation Act.
2. HHS has not proven that Mr. Bettelyoun's impairments are
limited to his HIV infection and the aseptic meningitis he suffered
in June of 1988.
I am not persuaded that HHS correctly characterizes the disability
laws and the Secretary's implementing rulings and regulations in
its attempt to show that Mr. Bettelyoun has remained a qualified
handicapped individual. HHS notes that "disability," as defined by
the Social Security Act, means the "'inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death which has lasted or can be expected to last for a
continuous period of not less than 12 months.'" HHS Posthrg. Br.
at 36, n. 18 (quoting 42 U.S.C. 423(d)(1)(A)). However, another
section of the Social Security Act not quoted by HHS states:
For purposes of paragraph (1)(A) -- (A) An individual shall be
determined to be under a disability only if his physical or mental
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. 423(d)(2).
HHS has no authority to issue regulations, rulings, or adjudicative
instructions that contravene this statutory definition of
disability. 42 U.S.C. 405(a). 28/ In administering the
disability program, HHS must take actions that are consistent with
the statute. Id. Therefore, by whatever methods or steps the
agency may have determined that Mr. Bettelyoun was disabled under
the Social Security Act, the determination means that Mr.
Bettelyoun has been declared by HHS to be unable to perform his
prior work as well as all other work of significant numbers in the
national economy for reasons that include, at the very minimum, his
physical or mental impairment(s).
HHS argues that SSA found Mr. Bettelyoun disabled and entitled to
benefits at the third step of the sequential evaluation process
mandated by HHS' regulations. HHS Posthrg. Br. at 37. According
to HHS, agency adjudicators found Mr. Bettelyoun disabled at the
third step of the sequential evaluation process, 29/ under the
Listing of Impairments, without inquiry into his ability to work.
HHS Posthrg Br. at 34; HHS PF No. 83. Also, according to HHS, when
Mr. Bettelyoun's application was adjudicated in 1989, SSA was
applying Social Security Ruling (SSR) 86-20 and its field
instructions at POMS DI 24525.095, and, therefore, SSA would have
found Mr. Bettelyoun disabled due to AIDS because he has been
diagnosed with HIV and aseptic meningitis. HHS Posthrg. Br. at 37
- 38 and attachments 1 and 2.
I find HHS' arguments defective as a matter of law.
Even assuming that SSA had found Mr. Bettelyoun disabled at the
third step of the sequential evaluation process as alleged by HHS,
I note that the medical conditions (and their equivalents)
described in the third step's Listing of Impairments are those the
Secretary considers severe enough to prevent an individual from
doing any substantial gainful activity whatsoever. 20 C.F.R.
404.1525(a). The Secretary, pursuant to the rulemaking process,
inquired into and established the correlation between the listed
impairments (or their equivalents) and the inability to perform all
substantial gainful activity. Therefore, a disability
determination at the third step of the sequential evaluation
process means that, on the basis of the severity of the
individual's medical impairments, the individual is unable to
perform any substantial gainful activity, including whatever past
work of a gainful nature he or she might have held. A disability
determination made at the third step does not mean that the
individual's work capabilities were irrelevant or never considered.
In addition, in order to proceed to the third step of the
sequential evaluation process, SSA must first find at the second
step that an individual has an impairment or a combination of
impairments (i.e., "severe impairment(s)") which imposes more than
a minimal degree of limitation upon his mental or physical ability
to perform the basic activities required of most jobs. 20 C.F.R.
404.1520(c), 404.1521. Such basic work-related activities
include the use of judgement, responding appropriately to
supervisors, co-workers, and usual work situations, and dealing
with changes in a routine work setting. 20 C.F.R. 404.1521.
Absent limitations of these or like work-related capabilities, Mr.
Bettelyoun's impairments would have been found "not severe," and
his disability application would have been denied at the second
step of the sequential evaluation. 20 C.F.R. 404.1520(c).
HHS misstates the law also in arguing that, at the third step, "the
eligibility for benefits are presumed on the basis of the
diagnosis." HHS Posthrg. Br. at 39. HHS regulations state
unequivocally that SSA will not consider an impairment to be of
Listing level severity merely because it has a diagnosis contained
in the Listing. The impairment also must have the requisite
medical findings that consist of symptoms, signs, and laboratory
findings. 20 C.F.R. 404.1525(c), (d).
I find also that HHS' summary of Social Security Ruling 86-20 is
not in accord with the plain language of the ruling. Whereas HHS
contends that Mr. Bettelyoun was found disabled under the ruling
because he has been diagnosed with HIV, the ruling states that a
positive HTLV-III/LAV 30/ test "does not indicate AIDS" absent one
of the other diseases enumerated in the Ruling. SSR 86-20 (HHS
Posthrg Br. attach. 1, at 90). Before Ms. Janis disclosed SSA's
payment of benefits to Mr. Bettelyoun and while HHS was still
attempting to show that Mr. Bettelyoun has remained capable of
performing his prior job notwithstanding his HIV diagnosis, HHS did
not allege that Mr. Bettelyoun experienced any of the other
diseases; nor did the evidence introduced by HHS contain reference
to any such diseases. Furthermore, while HHS posits that
"disability and eligibility for benefits are presumed on the basis
of the diagnosis" (HHS Posthrg. Br. at 39), HHS introduced no
evidence showing a medical diagnosis of AIDS for Mr. Bettelyoun,
and SSR 86-20 requires a "documented" diagnosis of AIDS that is
"supported by signs, symptoms and laboratory findings." HHS
Posthrg. Br. attach. 1, at 91 - 92.
In addition, HHS has confused Mr. Bettelyoun's June 1988 diagnosis
of "aseptic [free from infection] meningitis" with the requirement
for "[b]acterial infections: ... meningitis ..." specified in the
POMS section quoted by HHS. HHS Posthrg. Br. at 38. However the
mistake was caused, HHS' quotation from the POMS on "[b]acterial
infection: ... meningitis ..." is incorrect, incomplete, and
misleading at the very least. The section partially quoted by HHS
reads in its full text:
a. Bacterial infections, multiple or recurrent (any
combination of at least two within a 2-year period), of the
following types, affecting a child less than 13 years of age:
Septicemia, pneumonia, meningitis, bone or joint infection, or
abscess of an internal organ or body cavity ... caused by
Haemophilus, Streptococcus (including pneumococcus), or other
pyogenic [pus producing] bacteria.
POMS DI 24525.001.D.1.a. (HHS Posthrg. Br. attach. 2) (emphasis
added in bold type). There is no valid basis for HHS to apply to
Mr. Bettelyoun that part of the agency's criteria which is used to
adjudicate claims on behalf of children under the age of 13. In
addition, nowhere in the ruling or POMS directive cited by HHS is
there any support for HHS' contention that SSA is authorized to
find disability at the third step of the sequential evaluation
process due to AIDS merely because the individual has tested
positive for HIV and has suffered aseptic meningitis.
Even though I reject HHS' arguments that Mr. Bettelyoun was found
disabled only because of his HIV diagnosis and his having suffered
aseptic meningitis in June of 1988, I do not thereby conclude that
SSA misinterpreted the body of medical evidence in its possession
when it adjudicated Mr. Bettelyoun's disability claim. The full
extent of the evidence used by SSA to make its disability
determination was not made available for this proceeding because
Mr. Bettelyoun did not consent to its release and HHS did not
require such consent from Mr. Bettelyoun prior to initiating this
enforcement action against the Tribe. In the absence of SSA's
records, I have no basis for concluding that SSA misapplied the
regulations, rulings, and instructions of the Secretary when it
found Mr. Bettelyoun disabled.
However, applying the law correctly to reach the disability outcome
for Mr. Bettelyoun means that he must have some medically
determinable impairment(s) in addition to his HIV diagnosis and his
bout with aseptic meningitis in June 1988. HHS did not introduce
any evidence on the nature or effects of the additional
impairment(s) that have rendered him unable to perform all
substantial gainful activities. The inferences arising from the
disability determination by SSA are not overcome by Dr. Brown's
testimony that Mr. Bettelyoun's HIV infection had remained
asymptomatic, Mr. Bettelyoun's HIV infection did not present a
direct threat to the health or safety of others in the workplace,
and Mr. Bettelyoun possessed the credentials to perform the job for
the Tribe when he was hired in June 1988. See HHS Posthrg. Br. at
27 - 29. Therefore, I am unable to conclude, as urged by HHS, that
Mr. Bettelyoun was and has remained a qualified handicapped
employee.
For all of the foregoing reasons, I find that HHS has not proved by
a preponderance of the evidence that Mr. Bettelyoun is a qualified
handicapped individual.
IV. If I had the authority to proceed to the merits of the
discrimination alleged by HHS, I would find that HHS has failed to
prove that the Tribe's alleged noncompliance with section 504 of
the Rehabilitation Act could not be corrected by informal means.
A multi-step process is involved in determining whether there is a
violation of section 504 of the Rehabilitation Act. Westchester,
DAB 1357, at 6. For me to find a Section 504 violation, HHS also
must establish, among other requirements, that it could not secure
compliance with the Rehabilitation Act through informal means.
Westchester, DAB CR191, at 51; DAB 1357, at 8. HHS has not
satisfied this requirement for establishing a section 504
violation.
In seeking compliance from the Tribe through informal means, OCR
imposed two conditions on the Tribe: reinstating Mr. Bettelyoun to
his former job and making Mr. Bettelyoun "whole." HHS Ex. 31 at
17. OCR related a formula for the Tribe to use in computing a back
pay award to Mr. Bettelyoun, and OCR told the Tribe that it should
reinstate Mr. Bettelyoun without first determining the amount of
his back pay award. Notice at 10. Informal resolution of the
alleged noncompliance failed precisely because the Tribe did not
give back pay to Mr. Bettelyoun or reinstate him. Notice at 11.
The Tribe points out that damages must be proven, not presumed.
Tribe Posthrg. Br. at 59. It argues that Mr. Bettelyoun cannot
receive back pay when he is receiving money from the Social
Security Administration for his inability to work, and he cannot be
reinstated into his prior job when he cannot work. Id. The
specific amount of money Mr. Bettelyoun received from the Social
Security Administration is relevant to calculating any back pay to
which he may be due from the Tribe. Tribe Reply at 15.
I agree that such information is material to the issues of whether
Mr. Bettelyoun should be reinstated and given an amount in back pay
to make him "whole" as required by OCR. Yet, there is nothing in
the record to suggest that HHS had even mentioned to the Tribe the
existence, nature, or consequences of Mr. Bettelyoun's disability.
As already noted above, Mr. Bettelyoun has never executed a release
for such disclosures, and HHS expended considerable time to locate
Mr. Bettelyoun's Social Security records after their existence was
made known at hearing. While I recognize the agency's duty to
preserve Mr. Bettelyoun's privacy rights, I find it unreasonable
also that OCR conditioned the informal resolution of the dispute on
the Tribe's reinstating Mr. Bettelyoun to his former job and making
him "whole," as if SSA had not determined him disabled or made
payments to him. When the regulation authorizes a compliance
proceeding only when HHS/OCR has been unable to secure compliance
by use of informal means (45 C.F.R. 80.8(a)), the regulation
does not contemplate the agency's proceeding to hearing after
failing to make material disclosures to the employer or after
setting unreasonable or unfair conditions for the employer to meet.
Here, OCR failed to disclose to the Tribe not only the Social
Security information that was material to the Tribe's consideration
of whether Mr. Bettelyoun should be reinstated and how much back
pay, if any, he should receive, but OCR apparently also took the
same approach with respect to the payments made by IHS to Mr.
Bettelyoun after he resigned from his job with the Tribe. Even
after it initiated this compliance proceeding against the Tribe,
HHS objected to having an IHS witness answer the Tribe's questions
concerning Mr. Bettelyoun's work relationship with IHS, and HHS
objected to having IHS furnish records to the Tribe concerning that
work relationship. See HHS' Objection to Motion for Telephonic
Deposition and Information Request at 2 - 3. HHS contended that
such testimony and documents were irrelevant. Id. In overruling
HHS' objections, I found the information and records relevant at
least as to the issue of Mr. Bettelyoun's reasons for resigning
from his job with the Tribe. See May 21, 1993 Confirmation of
Ruling at 2. I now find such information and records from IHS
relevant also to any calculation of possible back pay for Mr.
Bettelyoun. Moreover, the failure to disclose such information and
records to the Tribe while OCR was insisting that the Tribe make
Mr. Bettelyoun "whole" rendered OCR's efforts to achieve voluntary
compliance unreasonable and unfair.
I note, too, that Mr. Bettelyoun's unavailability has now rendered
moot the two conditions specified by OCR in its informal efforts to
achieve compliance. HHS itself has been unable to produce Mr.
Bettelyoun for the purposes of giving further testimony. This
action is being maintained by HHS against the Tribe even though Mr.
Bettelyoun has failed to cooperate with the proceedings and has not
come forward as directed by me or requested by HHS.
Under all of the foregoing circumstances, the two conditions
specified by OCR (reinstatement and making Mr. Bettelyoun "whole")
were unreasonable and unfair, and they are now impossible for the
Tribe to satisfy. I therefore conclude that HHS has failed to
establish that the Tribe's alleged noncompliance with section 504
of the Rehabilitation Act could not have been corrected by informal
means.
V. If I had the authority to decide the merits of the
discrimination alleged by HHS, I would find that HHS has failed to
prove by a preponderance of the evidence that the Tribe subjected
Mr. Bettelyoun to adverse treatment in violation of section 504 of
the Rehabilitation Act.
To prove that the Tribe violated section 504 of the Rehabilitation
Act, HHS must show that Mr. Bettelyoun was subjected to
discrimination solely by reason of his handicap. See Norcross v.
Sneed, 755 F.2d 113, 117 (8th Cir. 1985); 31/ Westchester, DAB
1357, at 8.
Having considered, in the alternative, the evidence concerning the
alleged acts of employment discrimination, I find that HHS has not
proven this essential element of its case by a preponderance of the
evidence. HHS' position is based on many diffuse, unsubstantiated,
or objectively unreasonable allegations by Mr. Bettelyoun, and HHS'
evidence includes many possible causes for the allegedly adverse
treatment perceived by HHS. While individual pieces of Mr.
Bettelyoun's testimony may suggest employment discrimination when
they are viewed in isolation, the totality of the record evidence
on this critical issue fails to persuade me that the Tribe, as an
employer, caused or engaged in discrimination against Mr.
Bettelyoun solely on account of his HIV infection.
A. HHS failed to prove that Mr. Bordeaux gained access to Mr.
Bettelyoun's medical information without Mr. Bettelyoun's consent
or that Mr. Bordeaux disseminated that information for an unlawful
purpose.
One of HHS' contentions in this proceeding is that Mr. Bettelyoun's
supervisor, Earl Bordeaux, Jr., gained unauthorized access to
information about Mr. Bettelyoun's HIV-positive diagnosis and
disseminated that information to other tribal officials and
employees for the purpose of discriminating against Mr. Bettelyoun.
Notice at 6; HHS PF No. 31, 35, 36. I conclude that HHS has not
proved these allegations by a preponderance of the evidence.
I note by way of background that Mr. Bettelyoun is an enrolled
member of the Rosebud Sioux Tribe, an Indian Tribe of approximately
20,000 members located in Rosebud, South Dakota. Tr. 38, 1102. In
the summer of 1988, the Tribe employed 600 people in various
departments headed by 57 directors. Tr. 1102. One such
department, the Resource Development Office (RDO), operated as the
planning arm of the Tribe by soliciting grants and developing new
programs for the Tribe. Tr. 191, 981 - 82. The Bureau of Indian
Affairs of the U.S. Department of Interior financed all operations
of the RDO, including the salaries for its four-person staff.
Tribe Ex. 1; Tr. 191 - 92. 32/
In early June 1988, Mr. Bettelyoun was hired to work in the
newly-created position of Senior Planner/Assistant Director for the
RDO on the recommendation of Earl Bordeaux, Jr., its Director.
Tribe RRA No. 30; Tribe Ex. 5; Tr. 43. Mr. Bettelyoun was 37 years
old at that time and a college graduate. See, e.g., HHS Ex. 4.
There is no dispute that, immediately prior to beginning work for
the RDO on June 6, 1988, Mr. Bettelyoun had been hospitalized for
nearly two weeks due to severe medical problems. From
approximately May 15, 1988 until June 4, 1988, he had been
experiencing acute symptoms, such as "raging fevers," difficulties
with standing or walking, weight loss of 20 pounds or more, and
loss of his ability to taste. Tr. 59 - 60. He was admitted
through the emergency room of the IHS Hospital on May 27, 1988, and
he remained hospitalized there until the afternoon of June 5, 1988.
Tr. 60 - 62; Tr. 312 - 13. During that period, he received a test
for HIV, called HTLV-III. Tr. 61.
As already discussed, HHS contended that, despite the contrary
inferences arising from his extended hospital stay for very acute
symptoms, Mr. Bettelyoun's health did not interfere with his
ability to perform his new job the day following his discharge from
the hospital. Some of Mr. Bettelyoun's own testimony was equivocal
on this issue. He claimed he "could function" and "guessed"
he was
well enough to work upon his discharge from the hospital on the
afternoon of June 5, 1988, even though some people had thought him
deathly ill during the preceding days. Tr. 62, 193. He said he
had lost weight, but he contended that how he looked "should not
have been part of [his] daily work experience" because his being
diagnosed as HIV positive had not affected his ability to work.
Tr. 356. Such testimony by Mr. Bettelyoun is consistent with my
earlier finding that HHS has failed to prove by a preponderance of
the evidence that he was a qualified handicapped employee.
There is no allegation by HHS that any act of discrimination took
place from June 6, 1988, Mr. Bettelyoun's first day on the RDO job,
until some time after June 14, 1988. Mr. Bettelyoun testified
that, on June 14, 1988, he was informed by Dr. Jereb of the IHS
Hospital that he had tested positive for HIV and may have two
months, six months, a year or two years to live -- "it depends."
Tr. 72, 74.
Mr. Bettelyoun testified to having felt depressed and extremely
pressured by the news of his infection and the possibility that he
might live for only two months to two years. Tr. 73 - 74, 322. He
acknowledged having considered many weighty questions concerning
what he should do with his remaining time in life. Tr. 74 - 76.
Mr. Bettelyoun claimed that, even though others later told him he
appeared "in trauma" (Tr. 73), he did not take time off from work
after receiving the news of his infection and prognosis. Tr. 72 -
73. However, Ms. Whipple, then Director of the Tribe's CHR
Department, testified to having given him time off because he
appeared so visibly shaken after he returned from the hospital and
shared the news of his diagnosis with her. Tr. 411 - 12. (She
said he had been assigned to work for her department part time
before he received the test results. Tr. 411. 33/) I find her
testimony more credible because it is more consistent with Mr.
Bettelyoun's description of his mental state and Dr. Jereb's
prognosis of his much shortened life expectancy, and because she
has no incentive to give false testimony.
Mr. Bettelyoun traced the origins of the Tribe's alleged
discrimination against him to Mr. Bordeaux's discovery and
announcements concerning his HIV infection. I was not persuaded
that the Tribe engaged in unlawful discrimination against him or
that Mr. Bordeaux obtained information concerning his health
without his consent, as alleged.
Mr. Bettelyoun testified that he never told Mr. Bordeaux that he is
infected with the HIV virus, and he never confirmed or denied this
diagnosis to Mr. Bordeaux. Tr. 76. HHS noted also that Mr.
Bordeaux "did not have a release from William Bettelyoun which
permitted him access to information about his medical condition."
HHS PF No. 31.
Mr. Bordeaux does not claim that Mr. Bettelyoun ever told him he
was HIV-positive. According to Mr. Bordeaux, what Mr. Bettelyoun
said was that he was in the middle of a three-stage terminal
illness and that Mr. Bordeaux could talk to the doctors about his
terminal illness. Tr. 996.
I find Mr. Bordeaux's testimony concerning the conversation
credible because it is supported by other evidence of record. Mr.
Bordeaux provided details of how and where the discussion with Mr.
Bettelyoun took place. Moreover, Mr. Bettelyoun admitted that he
had willingly discussed his health with Mr. Bordeaux a few days
earlier. On June 6 or 7, 1988, Mr. Bettelyoun told Mr. Bordeaux
that doctors had ruled out certain diagnoses but were still
considering Rocky Mountain Spotted Fever, which could recur. Tr.
76 - 77. In addition, Dr. Jereb noted in the medical charts Mr.
Bettelyoun's desire to be open about his HIV diagnosis. Tr. 335.
By contrast, I find Mr. Bettelyoun's testimony overly technical and
therefore of questionable sincerity. 34/
Mr. Bordeaux claimed to have gone to see the doctors at the IHS
hospital because he was concerned about the possible impact of Mr.
Bettelyoun's unspecified terminal illness on Mr. Bettelyoun's
ability to perform his job. Tr. 999, 1000. According to Mr.
Bordeaux, the job Mr. Bettelyoun was hired to perform was not a
physical one, but it entailed considerable mental stress and
required that deadlines for submitting grant proposals be met. Tr.
1000; Tribe Ex. 2. After two trips to the IHS hospital in Rosebud,
Mr. Bordeaux concluded from the information Dr. Wayne Foster and
other hospital employees gave him that Mr. Bettelyoun had the HIV
virus. Tr. 995, 997 - 1000.
Mr. Bordeaux's explanation that he was concerned about Mr.
Bettelyoun's ability to work is reasonable and is consistent with
other evidence introduced by HHS. For example, as noted
previously, Ms. Whipple testified she gave Mr. Bettelyoun time off
from work because he looked so visibly shaken after returning from
the hospital and he admitted that he felt very depressed and under
a great deal of pressure. Mr. Bordeaux's explanations of his
motives are consistent also with the job description of the Senior
Planner/Assistant Director position held by Mr. Bettelyoun. See
Tribe Ex. 2.
Other evidence submitted by HHS, such as the guidelines issued by
the U.S. Office of Personnel Management (OPM), support the
legitimacy of Mr. Bordeaux's stated purpose for seeking information
concerning Mr. Bettelyoun's health. The guidelines issued by OPM
in late March of 1988 dealt with the federal employer's right to
evaluate an HIV-infected employee's ability to work safely and
reliably when there is a cause for concern. HHS Ex. 21g. The OPM
document explained the circumstances under which a federal employee
has a responsibility to produce medical documentation regarding the
extent to which his HIV infection is affecting his availability for
duty or job performance, as well as the federal employer's need to
address the concerns of fellow employees who are fearful of working
with an HIV-infected worker. Id. These federal bulletins note
that accurate and timely information will allow the agency to
consider alternatives to keeping the employee in his or her
position if there are serious questions about safe or reliable work
performance, and that medical information will help determine also
whether the HIV-infected employee's medical condition is
sufficiently limiting to entitle the employee to be considered for
reasonable accommodation under the Rehabilitation Act. Id.
As a whole, the record fails also to adequately support HHS' theory
that Mr. Bordeaux had an unlawful purpose in telling others of Mr.
Bettelyoun's medical condition. One witness, for example, who was
a member of the Tribal Council during the summer of 1988, testified
to having heard of Mr. Bettelyoun's HIV infection from Mr.
Bordeaux. Tr. 778, 828. Such testimony is consistent with Mr.
Bordeaux's explanation that he talked to the people he considered
his superiors in order to find out if the Tribe had any personnel
policies and procedures for dealing with AIDS. Tr. 1006.
Also, there is inadequate evidence to support the proposition that
Mr. Bordeaux, other managers employed by the Tribe, or tribal
leaders were responsible for disseminating the news of Mr.
Bettelyoun's medical condition. The evidence indicates that
everyone, without regard for their employment relationship to Mr.
Bettelyoun, was disseminating the news in and out of the workplace.
In addition to hearing the rumors that may have already resulted
from Mr. Bettelyoun's long hospital stay or his physical appearance
during June of 1988, many people learned about Mr. Bettelyoun's
test results from IHS employees or other sources. For example,
Arvella Haukaas, secretary for the RDO, testified that she learned
from a male nurse of the IHS Hospital that Mr. Bettelyoun "had
AIDS" and that there was common knowledge concerning Mr.
Bettelyoun's condition based on information given by another
hospital nurse and the inferences people drew from the hospital
room in which Mr. Bettelyoun had stayed. Tr. 708 - 09, 746, 763 -
64, 767. A friend of Mr. Bettelyoun's heard that Mr. Bettelyoun's
aunt had given the news of his HIV test results to quite a few
people in Rapid City. Tr. 879. Dr. Jereb noted that the
laboratory technician at the IHS Hospital read Mr. Bettelyoun's
test results before sending them to Dr. Jereb, and she became upset
by the news and told it to Dr. Jereb in the hallway of the
hospital, where others could have overheard her. HHS Ex. 23 at 19.
Thereafter, an IHS Hospital ward nurse, who was also a friend of
Mr. Bettelyoun's, asked Dr. Jereb on the street for his advice on
whether she should obtain a blood test after she, too, heard the
news. Id. at 30.
In addition, Dr. Jereb recorded in Mr. Bettelyoun's chart:
Patient stated that he did not want his diagnosis hidden, that
he was going to tell other people.
Tr. 335 - 36. Dr. Jereb was certain that Mr. Bettelyoun made such
a statement. HHS Ex. 23 at 15. The information recorded by Dr.
Jereb suggests that Mr. Bettelyoun himself may have voluntarily
discussed his HIV infection with others. This inference is
supported by the testimony of Ms. Whipple, who stated that Mr.
Bettelyoun had told her of his HIV test results during mid-June
1988, upon returning from the hospital. Tr. 411 - 14, 458, 467,
470.
In order to prove that Mr. Bordeaux was discriminating against Mr.
Bettelyoun, HHS introduced much hearsay evidence on what others
were purportedly saying about Mr. Bettelyoun and Mr. Bordeaux.
Even though Mr. Bettelyoun never heard Mr. Bordeaux talk to anyone
about his medical condition, Mr. Bettelyoun claims to have heard
from many people that Mr. Bordeaux was giving the news to others.
Tr. 79 - 83, 230. Also, HHS introduced evidence to show, for
example, that other employees heard Mr. Bettelyoun's brother say
that Mr. Bordeaux had threatened to bodily remove Mr. Bettelyoun
from the reservation. Tr. 743 - 44. Another witness said she was
asked by a janitor in the hallway whether she had heard that Mr.
Bordeaux was harassing Mr. Bettelyoun. Tr. 547. I did not find
such second or third-hand information persuasive. On the record as
a whole, I was not persuaded that Mr. Bordeaux inappropriately
obtained or disseminated information regarding Mr. Bettelyoun's HIV
infection.
B. HHS has not proved that Mr. Bettelyoun was subjected to
disparate treatment solely because his HIV infection became known.
In contending that Mr. Bettelyoun was later subjected to adverse
treatment by the Tribe due solely to his HIV infection, HHS
compares Mr. Bettelyoun's experiences during the initial eight
calendar days of his employment to the experiences he described for
the remaining two months and 12 days of his employment after he and
others learned of his HIV test results. According to HHS, during
the eight calendar days between June 6, 1988 until June 14, 1988
(when Mr. Bettelyoun received news of his HIV test results), Mr.
Bettelyoun encountered no difficulty in performing his job or in
interacting with tribal officials and employees, who treated him no
differently than other tribal staff members. HHS PF No. 20.
Mr. Bettelyoun testified that, when he reported for work on June 6,
1988, he was welcomed, given orientation, and was treated cordially
by everyone he met. Tr. 67 - 70, 174 - 75. During orientation,
Mr. Bettelyoun and another newly hired planner for RDO, Mike
LaPointe, received information about the locations of bathrooms,
the timing of coffee breaks, and the procedures for collecting
their paychecks. Tr. 175.
I find that Mr. Bettelyoun's experiences during the first eight
calendar days of his employment do not provide a reasonable basis
for Mr. Bettelyoun to form expectations concerning how he should be
treated by others or how he should perform his work thereafter.
During the first several days, he was undergoing orientation and
being welcomed into a newly created position. Also, because the
position assumed by Mr. Bettelyoun was a newly-created one, Mr.
Bettelyoun performed his work without a job description during
those initial days; he relied on general instructions given to him
by Mr. Bordeaux. Tr. 183, 765. A few weeks later, he was
reassigned from the RDO to the CHR office. Tr. 106, 410 - 13, 455.
Given these factors, I was not persuaded that Mr. Bettelyoun was
reasonable in his opinion that other employees interacted with him
differently after the initial eight days solely because of his HIV
infection.
In further support of its theory that the Tribe had caused or
condoned the disparate treatment of Mr. Bettelyoun at the work
place due to his HIV infection, HHS introduced testimony from the
RDO's secretary that she sprayed disinfectant on her word
processor, telephone, and desk after Mr. Bettelyoun had used them.
Tr. 705. Also, HHS introduced testimony from the cleaning lady
that, while she was in the midst of doing something else one day,
Mr. Bordeaux told her to "scrub" the RDO's rest room for men, while
giving her no similar instruction concerning the rest room used by
women. Tr. 518; see also HHS PF No. 59. However, other evidence
introduced by HHS shows that these events do not constitute
unlawful acts per se. 35/ There is also inadequate proof from HHS
that these acts were approved, authorized, or directed by the
Tribe.
Mr. Bettelyoun was asked if, for the period from mid-June to August
25, 1988, he had perceived any disparities in the manner Mr.
Bordeaux and his co-workers treated him (Mr. Bettelyoun) as opposed
to Mr. LaPointe, the other planner who was hired by RDO on the same
day as Mr. Bettelyoun. Tr. 394. Aside from the other planner's
access to a typewriter, the only thing Mr. Bettelyoun noted was the
other planner's having been allowed by Mr. Bordeaux to "go and
receive per diem and travel expenses and go attend a tourism
seminar conference" that had nothing to do with a planner's work
assignment. Tr. 394 - 98. Mr. Bettelyoun asserted that, if the
other planner was allowed to take non-job related overnight trips
and receive per diem and travel expenses for them, then Mr.
Bettelyoun felt he should have been allowed to do so as well. Tr.
396. Mr. Bettelyoun attributed the difference to his HIV
infection. Tr. 397. However, Mr. Bordeaux testified that Mr.
LaPointe's travels were related to his work on USDA projects. Tr.
1036.
In a technical sense, the alleged failure to allow Mr. Bettelyoun
to take as many non-job related trips and to incur as much non-job
related travel expenses as Mr. LaPointe may exemplify a form of
proscribed employment discrimination. If Mr. Bettelyoun were a
qualified handicapped person, the regulation would prohibit his
employer from "[a]fford[ing] a qualified handicapped person an
opportunity to ... benefit from the ... benefit ... that is not
equal to that afforded others." 45 C.F.R. 84.4(b)(iii). I do
not find the regulation applicable, given HHS' failure to show that
Mr. Bettelyoun is a qualified handicapped employee and given the
conflict in the evidence concerning the purposes of Mr. LaPointe's
trips. However, Mr. Bettelyoun's desire to take non-job related
trips and receive reimbursement for non-job related expenses is
relevant to my assessment of his credibility.
In response to Mr. Bettelyoun's situation, Mr. Lunderman held a
meeting with the RDO staff in late June 1988. At the meeting, he
told them that rumors must stop, that they needed to work together,
and they needed to behave professionally. Tr. 101. Mr. Bettelyoun
alleged that others' discriminatory treatment of him changed and
became more indirect after Mr. Lunderman's speech to the RDO staff.
Tr. 102. He said people turned and walked away from him, told him
they were busy, failed to give him messages from his family, and
moved his desk in the RDO office. Tr. 102.
The testimony concerning the alleged movement of Mr. Bettelyoun's
desk is conflicting as to whether it was moved (e.g., Tr. at 446,
712), for what reason it might have been moved (e.g., Tr. at 508,
513 - 19, 712), and the maximum extent of possible movement (e.g.,
Tr. 1022 - 26). Apparently to prove that Mr. Bordeaux caused the
desk to be moved, HHS called one of the cleaning people, Marie Two
Charger, to testify. Marie Two Charger and her husband were the
people who usually cleaned the RDO office, but there were others as
well. Tr. 713. Ms. Two-Charger testified that she was never able
to move Mr. Bettelyoun's desk by herself, and when she needed to
sweep under it, she required the help of two other people to move
it. Tr. 508. She was aware that one day in mid-July 1988, Mr.
Bettelyoun's desk had been pushed back against the wall. Tr. 509.
She did not know who had moved the desk. Tr. 513, 517. After
being questioned repeatedly by HHS' counsel on whether she ever had
a conversation with Mr. Bordeaux concerning the movement of the
desk or whether she ever received instructions from Mr. Bordeaux
concerning how she should explain the movement of the desk, Ms. Two
Charger's testimony was steadfastly that she has never spoken to
Mr. Bordeaux concerning the movement of that desk. Tr. 514, 515 -
18.
After representing that she was not trying to impeach Ms. Two
Charger's credibility, counsel for HHS then proceeded to elicit
totally different testimony from Ms. Two Charger concerning a
conversation she allegedly had with Mr. Bordeaux. Counsel for HHS
showed Ms. Two Charger the contents of a recent statement signed by
her at the request of HHS' counsel in preparation for HHS'
litigation. Tr. 523. That document, which HHS failed to provide
to the Tribe prior to the hearing in violation of my Prehearing
Order (Tr. 533), sets forth Ms. Two Charger's recollection that in
August of 1992, she was asked by Mr. Bordeaux to sign a document
claiming responsibility for having moved the desk. 36/ Tr. 523 -
26. (This statement was apparently intended to support HHS'
contention that Mr. Bordeaux had moved Mr. Bettelyoun's desk for a
discriminatory purpose.) Having exhibited no failure of memory or
understanding in testifying repeatedly that she had never held any
conversation whatsoever with Mr. Bordeaux concerning the desk, Ms.
Two Charger then ratified the accuracy of the information contained
in HHS' proposed exhibit 38 in response to a series of leading
questions from HHS counsel on direct examination of her own
witness. Tr. at 527 - 29. This witness claimed no medical
condition that would account for her abrupt changes in testimony;
she gave no credible explanation for her turn-about in testimony;
and she showed no confusion or difficulty with understanding
questions, contrary to HHS' assertion. See Tr. 515. For these
reasons, I give no weight to the modified testimony provided by Ms.
Two Charger or to the contents of HHS Ex. 38.
Moreover, Mr. Bordeaux testified that neither Mr. Bettelyoun nor
anyone else had told him that the desk was moved, and Mr.
Bettelyoun testified also that he did not speak to Mr. Bordeaux
about the desk. Tr. 97 - 99; 1047. Mr. Bettelyoun's failure to
question Mr. Bordeaux about the movement of the desk convinces me
that the event did not trouble Mr. Bettelyoun at the time. Mr.
Bettelyoun's failure to question Mr. Bordeaux about the desk also
is more consistent with the Tribe's contention that, if the desk
was moved at all, it was probably done in the course of cleaning
the office, and the desk could not have been moved very far, given
the size of the office and the other furniture it contained.
According to HHS, the Tribe subjected Mr. Bettelyoun to harassment
and disparate treatment by reassigning him to CHR. See HHS PF No.
66, 67. The evidence introduced by HHS in support of this
contention is conflicting and unpersuasive.
HHS introduced Mr. Bettelyoun's testimony that, as a consequence of
the reassignment on or about July 19, 1988, he was required to work
in a storage room in Ms. Whipple's department until a few days
before he submitted his resignation. Tr. 106, 108. He said he was
required to use a typewriter stand in her office as his "desk"
after he moved out of the storage room. Tr. 111. He said he had
no typewriter 37/ or telephone to use and felt that he was treated
adversely by the Tribe in these and other ways until he resigned
involuntarily. Tr. 107 - 11, 143 - 45.
HHS also introduced evidence that disputes Mr. Bettelyoun's
perceptions of discrimination while under Ms. Whipple's
supervision. Ms. Whipple, also called to testify by HHS, recounted
her good intentions in seeking Mr. Bettelyoun's reassignment, the
unavailability of any private office in her department and the CHR
building, his having borrowed her typewriter to use in the storage
room, and another planner's having used the storage room when he
needed quiet to think. Tr. 431, 433, 434, 450, 455 - 56. Ms.
Whipple explained that when he was first assigned to her
department, Mr. Bettelyoun shared her office (then the only office
not shared with another worker), and he used a "student desk" of
3.5 feet by 2 feet from which she had removed her typewriter. Tr.
433, 447, 448. Mr. Bettelyoun complained that he was kept from
doing his work in her office because she needed privacy to do her
counseling work from time to time. Tr. 434. Therefore, she gave
him the only other available space in the building, the storage
room, along with her typewriter to use. Tr. 449, 455.
Mr. Bettelyoun acknowledged that no one actually sabotaged his work
or made it impossible for him to accomplish his work tasks. Tr.
274. But he testified that, because of the "AIDS hysteria," people
took a longer time than before to give him the materials he needed
and, therefore, they made it more difficult for him to complete his
work. E.g., Tr. 277. However, neither he nor any other witness
provided the necessary details to support his perceptions of undue
or purposeful delays. He did not disclose the period of time
people took to give him his needed materials before his test
results became known, as compared to the period thereafter. Mr.
Schmidt, the Vice-Chairman of the Tribe, indicated that there were
problems at times when Mr. Bettelyoun asked for records from his
office staff; but the problems were not due to Mr. Bettelyoun's HIV
infection, but because his aunt, Doreen Gardner, who managed the
Tribe's Spotted Tail Crisis Center, tried at times to have him do
work for her without routing the matter through official channels.
Tr. 925. Mr. Schmidt felt people were more frustrated with Mr.
Bettelyoun's aunt than with Mr. Bettelyoun. Id.
Mr. Bettelyoun also gave Ms. Whipple other reasons for his failure
to complete his work projects for CHR, one of which involved a
training center for AIDS. Tr. 435 - 37. In addition to stating
that he was having difficulty obtaining the necessary statistics,
he also told her that he could not meet the project deadlines
because he was worried about his family's safety, he did not know
how he felt about himself, and the subject matter of AIDS for one
of the projects was too close to him. Tr. 437. At least two of
the reasons he gave for being unable to complete his work on time
had nothing to do with whether others were cooperating with him or
providing him with the materials he needed.
For these reasons, I do not find credible the allegation that Mr.
Bettelyoun was not able to accomplish his work tasks as easily as
before his HIV diagnosis solely because others were discriminating
against him on account of his handicap.
C. Many allegedly discriminatory incidents relied on by HHS
occurred outside the workplace setting.
I find that many events which HHS alleged to be discriminatory are
irrelevant because they occurred, if at all, outside the employment
setting. For example, during the period of his employment, Mr.
Bettelyoun heard only one person say that he should be gotten rid
of and shot: Doreen Gardner, his aunt. Tr. 231 - 32. Also, Mr.
Bettelyoun named only one person who said within his hearing that
she did not want to deal with him for fear of becoming
contaminated: Doreen Gardner, his aunt. Tr. 232. He said he could
not recall the names or full names of others who said they feared
becoming contaminated. Id.
I find that, even if Mr. Bettelyoun's aunt had said such things
about him, HHS has not proven that such statements constitute
employment discrimination perpetrated or condoned by the Tribe as
an employer. Mr. Bettelyoun did not allege, for example, that his
aunt made such statements to him at the work place or in her
capacity as the director of the Tribe's Spotted Tail Crisis Center.
Therefore, any such statements made by Ms. Gardner are not
attributable to the Tribe.
Other proof submitted by HHS also extended well beyond the
workplace setting. Mr. Bettelyoun said he heard from his brother
that some tribal employees made disparaging comments in the fields
and at a party in another town about Mr. Bettelyoun's condition.
Tr. 126. He said he was troubled by his niece's being called the
"AIDS girl" at the Head Start Program. Tr. 143. Also, Mr.
Bettelyoun heard that the tribal Vice Chairman's live-in
girlfriend, who was a friend of Mr. Bettelyoun's sister-in-law, was
encouraging his sister-in-law to leave her home because of Mr.
Bettelyoun. Tr. 275.
Also, HHS introduced testimony from a witness who heard Mr.
Bordeaux's father, Earl Bordeaux, Sr., say during the Health
Committee's report at a full Tribal Council meeting that a person
with AIDS was working for the Tribe but he should not be doing so.
Tr. 538. 38/ The witness explained that others at the Council
meeting told him he should not be making such remarks because he
would get into trouble. Id. After that, everyone "stayed away"
from that matter. Id.
I do not find material to the issue of employment discrimination
HHS' evidence concerning the experiences of Mr. Bettelyoun's
sister-in-law, the Vice-Chairman's live-in girlfriend, or Mr.
Bettelyoun's niece at the Head Start Program. With respect to the
comment allegedly made by Mr. Bordeaux, Sr., HHS apparently
introduced this evidence to show that Mr. Bordeaux, Sr., as a
Tribal Council member, was directing his son to give effect to his
discriminatory animus. I find, however, that the father's opinion
does not constitute proof that his son, as Mr. Bettelyoun's
supervisor, was engaged in employment discrimination on his own or
on behalf of the Tribe. If, as suggested by the above discussed
equivocal testimony, Mr. Bordeaux, Sr., expressed the
above-described opinion in his capacity as a Tribal Council
Representative during a Tribal Council meeting, such an opinion is
not actionable. Moreover, since there is no evidence that anyone
at the Tribal Council meeting agreed with Mr. Bordeaux, Sr.'s
statement, the evidence of the statement fails to support HHS'
theory that tribal officials were causing, engaging in, or
condoning employment discrimination against Mr. Bettelyoun.
Nor did I find persuasive HHS' contention that Mr. Bettelyoun was
subjected to unlawful discrimination because Tribal Council members
publicly joked about Mr. Bettelyoun's HIV infection. See HHS PF
No. 41. HHS offered testimony that a witness heard Alex Lunderman,
the Tribal Chairman, laugh when he was told by others that Mr.
Bordeaux was afraid to be in the same room with Mr. Bettelyoun (Tr.
481) and another witness heard Mr. Bordeaux laugh and utter "gay
jokes" in a bar about Mr. Bettelyoun's test results (Tr. 806).
Even assuming that Messrs. Lunderman and Bordeaux laughed in their
capacity as Mr. Bettelyoun's employers while in a bar and
elsewhere, HHS introduced the testimony also of Geraldine Arcoren,
the Tribal Chairman's secretary, who explained that in their
culture, laughter and joking are ways that tribal people cope with
very sad, upsetting, or frightening matters. Tr. 486, 501 - 502.
Ms. Arcoren's explanation persuades me that these men's laughter
may not have been motivated by any discriminatory animus or intent
to harass Mr. Bettelyoun.
D. Mr. Bettelyoun's perceptions of harassment were not always
reasonable, and may have been the result of the mental stress
associated with learning of his HIV diagnosis.
Even though HHS alleged that the Tribe discriminated against Mr.
Bettelyoun solely because of his handicap, HHS introduced evidence
that Mr. Bettelyoun's perceptions may have been caused by the
mental stress associated with HIV. For example, HHS elicited Mr.
Bettelyoun's testimony on direct examination that he became
"emotionally fatigued" after June 14, 1988. Tr. 354. Mr.
Bettelyoun explained that, in hindsight, he thought he and the
people in his family, community, church, and workplace were all
vacillating between the differing stages of the death and dying
process: denial, anger, bargaining, grieving, and then acceptance.
Tr. 354 - 55. He felt it was difficult and tiring for him to
maintain social and work relationships with people who did not have
the illness but were changing from the anger stage to the
bargaining stage, and then reverted to the denial stage. Tr. 355.
He felt he was inundated constantly with these changes in other
people, and he could not figure out at which stage these people
were. Id.
Mark Babitz, M.D., testified that, when people find out that they
have the HIV virus, their reactions have ranged from mild concern
to major depression and even suicide. Tr. 597. He testified that
the emotional state of people with the HIV infection may affect how
they perceive other people's behavior Tr. 597 - 98; see also HHS
Ex. 21c at 18. For example, the infected individuals may
experience severe depression, which may in turn cause them to
experience paranoid feelings or thoughts "on how they perceive
things or about how their work is evaluated or about whether they
are liked or not, or things like that." Tr. 597 - 98.
HHS relied on Mr. Bettelyoun's perceptions of harassment by those
around him to show that the Tribe had engaged in or condoned
unlawful discrimination against him solely on the basis of his
handicap. Mr. Bettelyoun defined harassment as:
Anything other than professional courtesy. If you are at 8:00
to 5:00 jobs, you are there. Anything other than that are just
conversation. [A]nd I still don't feel that talking about my
diagnosis is anybody's business other than mine unless I offer it
freely.
That's harassment to me. It's nobody's business. I am HIV
positive, ... or I have Aids. That is not part of people's job
description when they are working from 8:00 to 5:00.
Tr. 130 - 31. Mr. Bettelyoun's definition and perceptions of
harassment are not objectively reasonable; nor were his perceptions
of harassment consistent.
Concerning his perceptions of "harassment" after June 14, 1988, Mr.
Bettelyoun testified that he found it objectionable that the Tribal
Chairman as well as tribal members who were not his co-workers
offered to pray for his cure, by "laying hands" on him in
accordance with his people's traditional customs and beliefs. Tr.
115, 117, 1105. He found it objectionable that the Tribe's Social
Services Committee members cried, appeared upset, and voiced their
support for him after his medical condition became known. Tr. 113,
238 - 41. 39/ He found it objectionable that the Tribal Chairman's
secretary told him he looked ill, and he stopped talking with her.
Tr. 117. He found it objectionable that the Vice Chairman's
secretary was standoffish to him at first; but when she became
supportive of him, he found it objectionable because she may have
been overly supportive when doing so was not in her job
description. Tr. 118 - 19, 271.
Even though Mr. Bettelyoun said he found it objectionable for
people to exhibit concerns for his health and to offer to help him
(he said he reacted by keeping his head down when he walked and
wearing sunglasses), he found it objectionable also that people
walked away from him, no longer joked with him during coffee
breaks, and failed to invite him to take breaks with them at a
local mini-mart. Tr. 115, 122 - 124, 135; see also Tr. 761. He
found it objectionable that people were urging him to stand up for
his rights and wanted to discuss his plight with him. Tr. 120 -
21. He thought it was wrong of people to give him advice before he
asked for it and during office hours. Tr. 273. He thought it also
wrong and harassing that Tribal Council representatives offered
their assistance to him before he sought them out. Tr. 239.
Mr. Bettelyoun did not contend that he ever told the people who
were "harassing" him with their offers of help or expressions of
sympathy that he found their behavior improper, unwelcome, or
objectionable. HHS introduced the testimony of some witnesses who
believed that their attempts to help Mr. Bettelyoun were welcomed
by him and had heard him say that he needed the hug or show of
support. Tr. 456 - 57, 460 - 61, 487 - 88. Even the Vice Chairman
of the Tribe said he had given what he considered a "friendly hug"
to Mr. Bettelyoun on occasion after he learned of Mr. Bettelyoun's
medical condition. Tr. 924. The Vice Chairman thought he was
being supportive of Mr. Bettelyoun in showing that he was not
afraid to express himself. Tr. 924 - 25. No one heard Mr.
Bettelyoun say that he did not wish to be hugged or to receive
encouragement. Tr. 460 - 61. Nor did Mr. Bettelyoun say that,
when he wanted to socialize, he ever took the initiative of
inviting his co-workers to join him for breaks or in activities.
Whether or not Mr. Bettelyoun may have found the above- described
actions personally objectionable, his opinions and the nature of
the actions he described do not constitute actionable employment
discrimination. At bottom, what he found "harassing" consisted of
people's efforts to socialize with him during work time, people's
failure to seek him out when he was in the mood to socialize, and
people's failure to leave him alone when he was not in the mood to
socialize. His perceptions of harassment are consistent with the
earlier described testimony he gave concerning the lack of
synchronization between the varying mental stages of the death and
dying process that he and others around him were experiencing due
to his medical diagnosis. Mr. Bettelyoun's allegations of
harassment also are consistent with Dr. Babitz's opinion that
someone who is HIV-positive may experience paranoia when they are
severely depressed.
HHS introduced additional evidence showing that, in June of 1988,
the IHS Hospital that was providing treatment to Mr. Bettelyoun did
not have available brochures or instructional classes on living
with the HIV infection. Tr. 151 - 2, 324, 335. This line of
evidence, including Mr. Bettelyoun's descriptions of his
fluctuating moods, indicates that some of Mr. Bettelyoun's
perceptions of discrimination were not caused by objectively
hostile or unreasonable actions taken by other people. Instead, he
and others who cared about him were undergoing a natural
psychological course which even the area IHS hospital did not
explain to them at the time.
E. HHS failed to prove that any disparate treatment that may have
occurred was due solely to Mr. Bettelyoun's HIV infection because
the evidence suggests that Mr. Bettelyoun's mental state, "Indian
Politics," homophobia, and professional jealousy may have all
played a role.
From the evidence offered by HHS I cannot conclude that Mr.
Bettelyoun was subjected to disparate treatment solely on the basis
of handicap. This is in part because HHS' evidence includes many
possible reasons for Mr. Bettelyoun's experiences. For example, in
the previous section, I discussed the role Mr. Bettelyoun's mental
state played.
Mr. Bettelyoun testified also that he believed he was a victim of
"Indian Politics," in which people took a negative and tried to get
evil or political gain from it. Tr. 143. He further explained
that the cultural values of his people emphasize the negative, and
rumors or "word of mouth" are used to accentuate the negative in
tribal politics and in tribal employment situations, which pits
family against family. Tr. 363 - 64. He acknowledged that Indian
Politics existed long before he became infected with HIV. Tr. 269.
He felt that there exists no distinction between the tribal
community and the tribal government; in his culture, work and home
are one and the same. Tr. 366. I find, however, that section 504
of the Rehabilitation Act is limited to redressing discrimination
that occurs in programs or activities that receive federal funds.
Also, the testimony of Ms. Whipple contradicts HHS' contention that
the Tribe discriminated against Mr. Bettelyoun solely due to his
HIV infection. According to Ms. Whipple, tribal employees reacted
negatively to homosexuality, which they inferred from Mr.
Bettelyoun's HIV status. Tr. 422 - 423, 425. Ms. Whipple believed
that the general cultural attitude on the reservation was that
"gay" people should be beaten and removed from the premises. Tr.
423. According to Ms. Whipple, even those who had been told that
AIDS cannot be transmitted through casual contact were
stand-offish, due to their suspicions of Mr. Bettelyoun's
homosexuality. Tr. 420 - 21, 461.
Dr. Babitz, an employee of HHS whose responsibilities include
helping the agency to administer HIV early intervention programs,
was also of the opinion that homophobia is a major factor that
causes people to fear HIV and AIDS. Tr. 584. Dr. Babitz explained
that people tend to be afraid of those who might be different, and
in the case of HIV or AIDS, different because of their sexual
orientation. Id.
There is also evidence of record that suggests that whatever
animosity may have existed between Mr. Bettelyoun and Mr. Bordeaux
resulted from professional jealousy. Mr. Schmidt, the Tribe's Vice
Chairman, testified that there had been noticeable friction between
Mr. Bordeaux and Mr. Bettelyoun since the outset of Mr.
Bettelyoun's employment. Tr. 940. Mr. Schmidt believed that the
friction was caused by Mr. Bettelyoun's being a more capable writer
than Mr. Bordeaux. Id. In Mr. Schmidt's opinion, Mr. Bettelyoun
could have made Mr. Bordeaux look bad, and Mr. Bettelyoun should
have been Mr. Bordeaux's boss. Tr. 941. Mr. Schmidt did not hear
Mr. Bettelyoun complain of the treatment he received from Mr.
Bordeaux due to his medical condition; but Mr. Bettelyoun did
complain to Mr. Schmidt that his work capabilities surpassed Mr.
Bordeaux's. Tr. 922 - 23. Mr. Schmidt acknowledged the
possibility that, as a result of the pre-existing friction between
the two men, Mr. Bordeaux might have seized upon Mr. Bettelyoun's
HIV infection as a pretext "to maybe squeeze him out." Tr. 941.
F. The Tribe responded reasonably to the problems of which it was
aware.
The record as a whole establishes that Mr. Lunderman, on behalf of
the Tribe, addressed Mr. Bettelyoun's complaints in a reasonable
and lawful manner.
In response to Mr. Bettelyoun's situation, Mr. Lunderman first held
a meeting in late June 1988 with the RDO staff. He told them that
rumors must stop, that they needed to work together, and they
needed to behave professionally. Tr. 101. Those present did not
hear Mr. Lunderman refer to Mr. Bettelyoun's HIV infection. Tr.
733 - 34, 511 - 12. Nor was it Mr. Bettelyoun's desire that Mr.
Lunderman tell others at this meeting that he was infected with the
virus.
After a second meeting initiated by Mr. Bettelyoun on July 13 or
14, 1988 (Tr. 102), Mr. Lunderman issued directives on July 19,
1988 for all tribal employees to attend at least one of three
designated training sessions on AIDS. Tribe Ex. 14, 15; Tr. 715 -
17. I find that Mr. Lunderman's directives were reasonably
calculated to remedy the problems experienced by Mr. Bettelyoun.
Some people reported hearing Mr. Bordeaux and others say that they
feared AIDS, were concerned for the health of their families, or
did not wish to work with Mr. Bettelyoun. E.g., HHS Ex. 25(b), (e),
(f), (o). (However, not everyone behaved with fear or hostility
towards Mr. Bettelyoun. E.g., Tr. 933.) The federal publications
submitted by HHS recommend the use of education (such as news
bulletins, question and answer sessions, films, and video tapes) to
address the concerns of those who work with HIV-infected
individuals. E.g., HHS Ex. 21c at 18, 21g. Even though there is
no medical basis for an employee to refuse to work with an HIV-
infected individual, the U.S. Office of Personnel Management, for
example, instructed managers to take the concerns of such employees
seriously and to address them with appropriate information and
counselling. HHS Ex. 21g.
Also, Dr. Babitz's testimony helped establish the reasonableness of
Mr. Lunderman's directive on the training sessions. Dr. Babitz is
employed by HHS to provide oversight and consultation in the
administration of HHS grants, and he gives educational programs
also on behalf of HHS to persons who work in HHS-funded grant
programs. Tr. 565. When asked by HHS whether there are any
established methods for alleviating or for dealing with co-workers'
fear of HIV or AIDS, Dr. Babitz answered that it was basically
through education; that is, answering questions, giving people
assurances, distributing published information, and like efforts.
Tr. 585.
In addition to directing the employees' attendance at training
sessions, Mr. Lunderman authorized Mr. Bettelyoun's reassignment to
the CHR department headed by Ms. Whipple, who had been requesting
Mr. Bettelyoun's assistance in drafting grants for her department.
Tr. 106, 411 - 13, 455. According to Ms. Whipple, she had
discussed the reassignment with Mr. Bettelyoun and he had agreed to
it. Tr. 413, 455. Mr. Bordeaux said he was on a business trip at
the time and did not request Mr. Bettelyoun's reassignment. Tr.
1007 - 08. 40/
Mr. Bettelyoun does not claim to have sought another meeting with
Mr. Lunderman to discuss any problems with discrimination he may
have experienced or suspected after his reassignment to CHR. His
silence is consistent with the Tribe's contention that the Tribe
did not cause or condone any employment discrimination against him.
His silence also is consistent with Ms. Whipple's testimony that
she did not treat him adversely but was attempting to help him.
Her ability to help him was limited on at least one occasion by his
own failure to cooperate. He would not identify to Ms. Whipple the
person on her staff who was allegedly treating him poorly. Tr. at
435. At other times, she was told by Mr. Bettelyoun that people
did not want to work with him, that people did not give him
information immediately after promising to do so, and that people
were preventing him from meeting deadlines in his work. Tr. 435,
437, 453 - 54, 465 - 66. However, there also is no evidence that
he ever asked Ms. Whipple to intervene or alleviate these alleged
problems. As discussed further below, Mr. Bettelyoun was already
considering legal action against the Tribe, which could have
provided Mr. Bettelyoun with a potential motive for announcing an
exaggerated version of his experiences to others so that they may
later recall them, while he sought no solution for these alleged
problems from his supervisor, Ms. Whipple, or Mr. Lunderman.
Mr. Lunderman did not take further action because Mr. Bettelyoun
did not continue to report problems to him after mid-July 1988 and
Mr. Bettelyoun resigned from his job on August 25, 1988. Moreover,
I do not fault Mr. Lunderman for his failure to bring about
immediate changes fully satisfactory to Mr. Bettelyoun. Mr.
Bettelyoun's problems were caused in part by his own mental state,
deficiencies in the Tribal people's knowledge about the HIV virus,
traditional cultural attitudes towards his suspected homosexuality,
and the absence of instructional materials on coping with the
social effects of HIV and AIDS during the Summer of 1988.
VI. If I had the authority to decide the merits of the
discrimination alleged by HHS, I would find that HHS failed to
prove by a preponderance of the evidence that the Tribe forced Mr.
Bettelyoun to resign in violation of section 504 of the
Rehabilitation Act.
A. HHS failed to prove that Mr. Bettelyoun resigned because Mr.
Bordeaux repeatedly asked him to do so or that, if Mr. Bordeaux
asked for Mr. Bettelyoun's resignation, he was acting for the
Tribe.
To support HHS' allegation that Mr. Bettelyoun was forced by the
Tribe to resign from his job, HHS elicited Mr. Bettelyoun's
testimony that Mr. Bordeaux had asked for his resignation
approximately eight times during private encounters between June 20
until July 15, 1988 (more than one month before Mr. Bettelyoun gave
his resignation). Tr. 90. Mr. Bordeaux denied ever having asked
Mr. Bettelyoun to resign. Tr. 1004. He said he was surprised by
the resignation and had never been told by Mr. Bettelyoun that he
objected to the way he was being treated. Tr. 1003 - 04. Mr.
Bordeaux was told by Mr. Bettelyoun only that he was having some
personal problems. Tr. 1003.
According to Mr. Bettelyoun, he was sufficiently troubled by his
situation that, by June 28, 1988, he had retained an attorney. Tr.
82 - 84. He said he informed Mr. Bordeaux of his attorney and told
Mr. Bordeaux he was going to remember all that was said for a
possible legal action. Id. Mr. Bettelyoun said his attorney's
advice was to let happen what happens, to stay on the job, and to
get in touch again after three months. Tr. 139, 245. Such advice
by his attorney helps to explain why Mr. Bettelyoun did not tell
people that their offers of advice and prayers, for example, were
not welcomed by him and should cease. Such legal advice and the
option of a lawsuit provided Mr. Bettelyoun with incentives also to
emphasize in his own mind (or at least to remember) only the
adverse impact of his experiences from June 14 to August 25, 1988.
I do not find persuasive HHS' efforts to construe Mr. Bordeaux's
alleged requests for a resignation as official acts on the Tribe's
behalf. Mr. Bettelyoun testified that he never heard Alex
Lunderman, then the Tribal Chairman, say that Mr. Bettelyoun should
be fired or should resign. Tr. 227 - 28, 231. He thought Mr.
Lunderman wanted him to resign because others told him so and
because Mr. Lunderman did not write a memo instructing Mr. Bordeaux
to stop asking for a resignation. Tr. 227 - 28. Another witness
testified that she heard Mr. Lunderman utter words to the effect of
"We're going to have to do something about it," and she interpreted
Mr. Lunderman's meaning to be that he wanted to terminate Mr.
Bettelyoun's employment. Tr. at 802, 813. 41/ However, the Vice
Chairman of the Tribe, Vernon Schmidt, testified to a meeting in
which Mr. Schmidt and Mr. Lunderman instructed Mr. Bordeaux to
handle the situation with Mr. Bettelyoun properly to protect the
Tribe and the rights of Mr. Bettelyoun. Tr. 920 - 21, 939; HHS Ex.
25b. The tribal Chairman and Vice Chairman were in the chain of
command over Mr. Bordeaux. E.g., Tr. 939.
HHS did not introduce any evidence showing that anyone other than
Mr. Bettelyoun had heard Mr. Bordeaux or any other employee,
official, or agent of the Tribe seek a resignation from Mr.
Bettelyoun. One of HHS' witnesses, a Tribal Council member during
1988, testified that she never heard any tribal official speak
negatively of Mr. Bettelyoun. Tr. at 807 - 09.
For these reasons, I am not persuaded that Mr. Bordeaux did ask Mr.
Bettelyoun for his resignation. However, I conclude that, even if
Mr. Bordeaux did ask Mr. Bettelyoun for his resignation, it was not
done as an act of the Tribe.
B. The evidence suggesting that Mr. Bettelyoun resigned
voluntarily is stronger than that suggesting that the Tribe forced
him to resign.
In early June 1988, when Mr. Bettelyoun was hired to work in the
newly created position of Senior Planner/Assistant Director for the
RDO, he was 37 years old and a college graduate. See, e.g., HHS
Ex. 4. Even though he had the paper credentials for the Senior
Planner/Assistant Director position, he had also a history of
changing jobs after short intervals due to disagreements with his
supervisors or his desire to earn more money and work fewer hours.
Mr. Bettelyoun's departures from other jobs have had nothing to do
with his HIV infection. From 1973 to 1981, he had held a number of
jobs with other employers for periods ranging from a few months to
less than one year; he left at least three of those jobs due to
disagreements with his bosses, and he left other jobs due to his
dissatisfaction with the hours of work or the amount of his pay.
Tr. 39 - 43; 387 - 392; HHS Ex. 4. After 1981 and until June of
1988, he took some classes and claimed no employment, other than
volunteer work. Tr. 42, 172, 392; Tribe Ex. 4. For the period
from May of 1987 until May of 1988, Mr. Bettelyoun described
himself as a "volunteer" at the Spotted Tail Crisis Center, a
tribal facility managed by Mr. Bettelyoun's aunt, Doreen Gardner,
where he wrote grant proposals for the Center on a contingency-fee
basis. Tr. 42 - 43. That is, he factored his compensation into
the grant proposals he drafted so that he would receive a
percentage of the grant money if the proposals received funding.
Tr. 162, 179 - 82, 190, 392, 989. The timing of his resignation
from his Senior Planner/Assistant Director job with the Tribe,
together with his opportunities to earn money by the other means
discussed herein, are consistent with his overall work history.
As for the issue of what or who caused Mr. Bettelyoun to resign
from his job as Senior Planner/Assistant Director with the Tribe,
I begin by noting that the evidence is conflicting as to the
location(s) where Mr. Bettelyoun worked from mid-July (when Mr.
Lunderman reassigned him to work for Ms. Whipple) until August 25,
1988 (the day Mr. Bettelyoun gave his resignation to Mr. Bordeaux).
According to Ms. Whipple, Mr. Bettelyoun shared her office for
approximately seven to ten days at the beginning of his
reassignment (not the two days at the end as he had alleged), and
he stayed in the storage room for another ten days thereafter. 42/
Tr. 448 - 49. After Mr. Bettelyoun had been with the CHR
department for approximately two weeks, he told Ms. Whipple he
wanted to return to the RDO office to work. Tr. 436 - 37. 43/ He
said he could not complete the assigned projects for her. Id. Ms.
Whipple did not know where he went thereafter, but she assumed that
he returned to work in the RDO office. Tr. 448.
Mr. Bordeaux did not recall having seen Mr. Bettelyoun in the RDO
office again. Tr. 1009. Mr. Bordeaux thought Mr. Bettelyoun
sometimes travelled out of town on business for RDO. Tr. 1015.
Mr. Bettelyoun testified that he was sharing Ms. Whipple's office
until a couple of days before he resigned, but that he had also
received her permission to work 50 percent of his time at home, 25
percent of his time in the field, and 25 percent of his time at the
CHR office. Tr. 108, 141.
Ms. Haukaas, the secretary of RDO, stated her impressions that Mr.
Bettelyoun was gone from the office "a lot" to make presentations
for IHS, that he was unable to meet deadlines for submitting grant
proposals for the office as a result, 44/ and that he had told her
a week or longer before August 25, 1988 that he had given his oral
resignation and would be doing consulting work for IHS. Tr. 721,
724 - 26. Also, as noted earlier, while Mr. Bettelyoun was
employed full time by the Tribe, he held a part time job in another
town at a video store managed by his brother.
There is no dispute that, while he was still employed by the Tribe,
Mr. Bettelyoun took time away from his job in order to make
speeches for IHS regarding his experience with the HIV infection.
Tr. 152 - 53, 661, 721. When IHS hospital doctors diagnosed Mr.
Bettelyoun as HIV-positive in June of 1988, the IHS hospital had
pamphlets concerning the risks of transmitting the HIV virus, but
it did not provide information on living or coping with the medical
condition. Tr. 151. In July of 1988, a female friend of Mr.
Bettelyoun's who also was infected with HIV and is a Native
American, Mary Janis, approached him about making presentations of
their experiences for IHS, which had set aside money for the
project and asked for her assistance. Tr. 149, 862 - 64, 867 - 68.
Thereafter, Mr. Bettelyoun performed such work for IHS while
employed by the Tribe. Tr. 152 - 54, 661, 752. Ms. Janis
testified that Mr. Bettelyoun later requested retroactive payments
of $250 per session from IHS for the speeches he made during July
and August of 1988. Tr. 880 - 81, 883. HHS was unable to locate
through IHS the canceled checks and like documents that would
verify the actual payments made by IHS to Mr. Bettelyoun. Tr. 1138
- 39.
Neither IHS nor Mr. Bettelyoun had asked Mr. Bettelyoun's
supervisor for permission to make these presentations for IHS while
Mr. Bettelyoun was being paid by the Tribe to do its work. Tr.
662, 891 - 92, 1016 - 17. However, Mr. Lunderman testified that
Ms. Whipple asked if Mr. Bettelyoun could make a presentation, and
Mr. Lunderman gave his consent. Tr. 1108. Mr. Lunderman did not
state whether the permission he gave was for Mr. Bettelyoun to do
a presentation for IHS.
Mr. Bettelyoun testified that he submitted his resignation on
August 25, 1988 because he learned that Mr. Bordeaux had challenged
his brother, Alvin Bettelyoun, to a fight at a restaurant during
off-work hours and that Mr. Bettelyoun's niece was being called the
"AIDS" girl at her Head Start Program. Tr. 142 - 44. Mr.
Bettelyoun said he was bothered by what he considered "Indian
politics" and felt that Mr. Bordeaux's attempt to fight Mr.
Bettelyoun's brother was the proverbial straw that broke the
camel's back. Tr. 143 - 45. Mr. Bettelyoun said he was already
greatly troubled by his not having been given a typewriter or a
business phone to use for his work, his need to drive 45 minutes
from his home to the Tribal building, and his not getting any
directions from Mr. Bordeaux on his work assignments. Id.
I did not find the reasons cited by Mr. Bettelyoun persuasive that
his resignation was involuntary or that the described actions
constituted a violation of section 504 of the Rehabilitation Act.
First, on the issue of Mr. Bordeaux's supervision over Mr.
Bettelyoun's work (which allegedly contributed to Mr. Bettelyoun's
involuntary resignation), Mr. Bettelyoun testified also that, even
when he was assigned to work in the RDO office, he did not see Mr.
Bordeaux for days at a time because Mr. Bordeaux had a drinking
problem that caused him to be gone from the office for lengthy
periods of time. Mr. Bettelyoun said Mr. Bordeaux's drinking just
exacerbated the problems of Mr. Bettelyoun's being HIV positive.
Tr. 196.
Mr. Bordeaux testified that, at the outset of Mr. Bettelyoun's
employment, he gave Mr. Bettelyoun the freedom to pursue any grant
or economic development project he wanted. Tr. 992. Mr. Bordeaux
said he knew Mr. Bettelyoun was an experienced and well-qualified
grants writer. Tr. 989 - 90. Moreover, Mr. Bettelyoun was the
Senior Planner, to whom Mr. LaPointe of RDO reported. Tr. 1009 -
10. According to Mr. Bordeaux, there were times when he was out of
the office and Mr. Bettelyoun was left in charge to take care of
office business. Tr. 1010. Thus, it is reasonable to conclude
that Mr. Bordeaux did not supervise Mr. Bettelyoun closely because
Mr. Bordeaux did not believe Mr. Bettelyoun required close
supervision, rather than because of his HIV status.
I note also that, even according to Mr. Bettelyoun, Mr. Bordeaux
had not asked for a resignation since July 15th -- approximately 40
days before he gave his resignation. Tr. 90. During the
intervening 40 days, Mr. Bettelyoun was reassigned to work for Ms.
Whipple, who did not ever ask for his resignation or indicate that
she wanted him to stop working. The alleged lack of proper
supervision from Mr. Bordeaux should not have contributed to Mr.
Bettelyoun's resignation, since he was not supposed to have been
supervised by Mr. Bordeaux after July 15, 1988. On the contrary,
the fact that Mr. Bordeaux was no longer supervising Mr. Bettelyoun
lends credence to Mr. Bordeaux's testimony that Mr. Bettelyoun
resigned for personal reasons, as opposed to having been forced to
do so by his employer. Moreover, in this context, Mr. Bettelyoun's
criticisms of Mr. Bordeaux appeared gratuitous, but were consistent
with Vice Chairman Schmidt's observation that there existed
personal friction between the two men, due to Mr. Bettelyoun's
superior capabilities.
As for the absence of a typewriter, I have earlier noted that Mr.
Bettelyoun did borrow a typewriter to use and, therefore, his
relating his resignation to his not having been provided with a
typewriter was hypertechnical and unpersuasive. Even though there
is no evidence that the Tribe installed a telephone for him after
his transfer to CHR, HHS has not shown that the omission was due to
anything other than oversight. Mr. Bettelyoun did not claim to
have asked Ms. Whipple or Mr. Lunderman for a telephone. Nor did
he claim to have asked the Tribe to reimburse him for the
business-related calls he may have had to make from home or
elsewhere. As in other matters, Mr. Bettelyoun's credibility is
undercut by his prolonged silence on matters he later claimed were
very troubling to him.
In addition, I note that, at another juncture in the hearing, Mr.
Bettelyoun's testimony was that he felt he could not continue to do
his planning work from his home because the Tribe did not provide
him with a business phone and a typewriter to use at his home. Tr.
144. I do not find an affirmative duty on the part of the Tribe to
ascertain whether he had a typewriter or a telephone at his home.
If Mr. Bettelyoun wished, he could have asked for reimbursement of
business-related calls he made from home, and he could have asked
to borrow a typewriter from the office. Mr. Bettelyoun may not
have asked about these two items for his home use because, as I
have already noted, neither Mr. Bordeaux nor Ms. Whipple were clear
on his whereabouts. There is inadequate evidentiary support for
Mr. Bettelyoun's allegation that he received Ms. Whipple's
authorization to work at home.
Mr. Bettelyoun's complaint about his 45 minute drive from home is
also unpersuasive. The Tribe did not require or cause him to live
45 minutes away from his work site. Unless he increased the time
he worked at home to 100 percent, 45/ he would have the same
distance to drive even if he did not have the HIV infection.
There is evidence of record to support the Tribe's contention that
Mr. Bettelyoun resigned voluntarily.
According to Mr. Bettelyoun's account of his final exchange with
Mr. Bordeaux, Mr. Bordeaux took the written resignation and told
Mr. Bettelyoun, "[N]ow that you have given me what I want, I'll
give you what you want. The doctor who released your medical
information to us was Dr. Foster." Tr. 147. As already discussed
in a preceding section, after obtaining Dr. Foster's name,
resigning from his full-time job with the Tribe, and resigning from
his part-time job with the video store managed by his brother, Mr.
Bettelyoun then filed his lawsuit seeking damages resulting from
IHS's alleged breach of his privacy rights. As also noted above,
Mr. Bettelyoun received $30,000 in settlement from the United
States.
Also, Roger Follas of IHS testified that, shortly before Mr.
Bettelyoun resigned from his job with the Tribe, Mr. Follas
discussed with Mr. Bettelyoun the possibility of Mr. Bettelyoun's
continuing to make speeches for IHS. Tr. 663. On August 26, 1988,
the day after Mr. Bettelyoun resigned from his job with the Tribe,
Mr. Follas executed a purchase order committing IHS to pay Mr.
Bettelyoun for his services from August 31 to December 31, 1988.
Tr. 665 - 66; Tribe Ex. 25.
Mr. Bettelyoun's testimony concerning the formation of his contract
with IHS was equivocal, evasive, and not credible. He was asked if
he has any conversations with Mr. Follas or Dr. Welte of IHS prior
to August 26, 1988; Mr. Bettelyoun's answer was that he never
attended any meetings with them where it was stated expressly that
he would go to work for IHS. Tr. 296. He said he had no idea how
or why IHS requisitioned his services on August 26, 1988. Tr. 286
- 97. Also, Mr. Bettelyoun refused to acknowledge that, by working
for IHS, he expected to earn more than the $7.75 per hour the Tribe
paid him. Tr. 297 - 98. When asked about IHS's records showing
that he was to be paid $6500 over four months (from August 31, 1988
to December 31, 1988), Mr. Bettelyoun claimed, "That's not the way
it turned out." Tr. 297. He claimed he was not paid $6500 over a
four month period, but he did not know the "exact figures" of how
much he was paid by IHS for the four months. Tr. 298. He refused
to concede even that $6500 over a four-month period is greater than
the amount he would have earned during the same period by working
for the Tribe at $7.75 an hour, eight hours each workday. 46/ Tr.
297 - 98. Also, he also refused to concede that, in 1989, he
earned considerably more money from his speechmaking activities
around the country than if he had remained in his job with the
Tribe. Tr. 298. Mr. Bettelyoun said he could not recall how much
he earned in 1989. Tr. 299.
In fact, by September 13, 1988, 19 calendar days after resigning
from the tribal job, Mr. Bettelyoun was claiming $2281 from IHS for
having completed 19 presentations. HHS Ex. 39 at 4. By September
20, 1988, IHS had obligated $6500 from its AIDS Prevention Fund for
payment to Mr. Bettelyoun. HHS Ex. 39 at 3. On November 15, 1988,
Mr. Bettelyoun sought $250 from IHS for each of his presentations
in October, and he asked IHS to pay an additional $3018.40 for the
presentations he planned to make during the remaining contract
period. 47/ HHS Ex. 39 at 2. Despite his earlier denials and
equivocations on this matter, he did receive a check from IHS for
$6500 in January 1989, for having made presentations for IHS during
the preceding four months. Tr. 379.
While making presentations under contract with IHS during
mid-September 1988, Mr. Bettelyoun and others formed a corporation
also to provide education and support services for dealing with HIV
and AIDS. HHS Ex. 37; Tr. 358 - 59. Mr. Bettelyoun made
presentations for the corporation during the period of his contract
with IHS and thereafter as well. Tr. 358, 872, 874 - 75. At
first, his speaking engagements for the corporation overlapped the
same geographical area as that served by the local IHS office
(i.e., the states of North Dakota, South Dakota, and Nebraska);
later, he expanded his presentations for the corporation to several
other states as well. Tr. 149, 301. The corporation's business
manager negotiated varying prices for these engagements, and the
Tribe was asked to pay $500 per session for Mr. Bettelyoun's
presentation in 1989. Tr. 300 - 01.
On the basis of the record as a whole, I find that HHS has not
proven by a preponderance of the evidence that the Tribe caused Mr.
Bettelyoun to resign involuntarily solely because of his HIV
infection. As discussed above, there is evidence that Mr.
Bettelyoun was not working hard or consistently for the Tribe from
at least July until August 25, 1988 due to his other commitments
and because he was distracted by the prognosis provided by Dr.
Jereb. It is not unlikely that someone in Mr. Bettelyoun's
position, who was told by his doctor that he might have only a
couple months to a couple of years to live, would wish to have more
leisure time or to earn more money than $7.75 per hour for drafting
grant proposals each day of the week. See Tribe Ex. 5.
I do not find credible Mr. Bettelyoun's testimony that he never
considered leaving his job with the Tribe in order to maximize his
use of the short time he thought he had remaining. Tr. 392 - 93.
Nor do I find credible Mr. Bettelyoun's testimony that he never
explored other job possibilities while employed by the Tribe. Tr.
398. Mr. Follas' testimony contradicted Mr. Bettelyoun's
contention, as did Arvella Haukaas' testimony about Mr.
Bettelyoun's earlier oral resignation. Also, it appears highly
unlikely that Mr. Follas would have executed a purchase order for
Mr. Bettelyoun's benefit on August 26, 1988, without having
discussed the matter in some detail with Mr. Bettelyoun. The
"justification memorandum" IHS prepared to support its contract
with Mr. Bettelyoun was not submitted by HHS, because Mr.
Bettelyoun did not authorize its release. Tr. 1137 - 38.
The financial records produced by IHS suggest a financial incentive
for Mr. Bettelyoun to leave the Tribe's employ. In addition, Mr.
Bettelyoun's formation of a private corporation for performing
consulting work is consistent with his overall work history and his
stated interest in maximizing his remaining time. Mr. Bettelyoun
may have had more than one reason for resigning from his job with
the Tribe. However, HHS has failed to prove by a preponderance of
the evidence that the Tribe coerced his resignation in violation of
section 504 of the Rehabilitation Act.
CONCLUSION
For the reasons stated, I conclude that I lack subject matter
jurisdiction over this action and that it must therefore be
dismissed. In the alternative, if I had subject matter
jurisdiction, I would conclude that HHS failed to prove by a
preponderance of the evidence that: (1) Mr. Bettelyoun was a
qualified handicapped person within the meaning of section 504 of
the Rehabilitation Act, (2) the Tribe's alleged noncompliance with
section 504 of the Rehabilitation Act could not be corrected by
voluntary means, and (3) the Tribe discriminated against Mr.
Bettelyoun solely on the basis of his handicap in violation of
section 504 of the Rehabilitation Act.
_____________________________
Mimi Hwang Leahy
Administrative Law Judge
1. The Notice also contained additional allegations concerning
the Tribe's non-compliance with certain procedural requirements of
the Rehabilitation Act. The parties later resolved the procedural
issues by agreement. Transcript (Tr.) 6; Joint Exhibit (J. Ex.) 1.
2. During its investigation, OCR found no evidence that the
Tribe had submitted any Assurance of Compliance (HHS Form 641)
required by section 504 of the Rehabilitation Act. HHS Ex. 31 at
11; see also, 45 C.F.R. 80.4. Later, HHS introduced copies of
four Assurances of Compliance executed by the Tribe between 1969
and 1990. HHS Ex. 18a - d.
3. For the sake of convenience, I will refer to Mr.
Bettelyoun's employment by or with the Tribe in discussing his work
from June 6, 1988 until August 25, 1988. As discussed herein, the
Resource Development Office of the Tribe hired Mr. Bettelyoun on
June 6, 1988, but prior to his resignation on August 25, 1988, he
was reassigned to work for another department of the Tribe.
4. The headings included in my Findings of Fact and Conclusions
of Law (FFCL) are intended as aids to the reader. The headings are
not Findings of Fact or Conclusions of Law and they do not change
the meaning of any Finding of Fact or Conclusion of Law.
5. Ms. Haukaas' name appears in a number of different spellings
in the record, including "Hawkass" and "Haukass." I have
used the
spelling which she apparently used in signing her name. HHS Ex.
25o at 2, 3.
6. The January 14, 1987 Assurance of Compliance was admitted in
evidence at hearing as HHS Ex. 18b.
7. HHS contends that the Tribe cannot object to HHS's Exhibits
17c and 17d, since it filed no written objection to their
authenticity before hearing, as required by 45 C.F.R. 81.75.
HHS Supplemental Brief (Supp. Br.) at 7. I find that the Tribe did
provide written objections prior to hearing in its responses to
HHS's Requests for Admission. The Tribe specifically denied the
truth of the information contained in HHS' Exhibits 17c and 17d.
Tribe RRA No. 6 - 14. In addition, the problem here is not that
HHS's Exhibits 17c and 17d are not the things they purport to be.
(They indeed appear to be accurate reproductions of pages from HHS
publications.) Rather, the dispute is over the truth or accuracy
of the information contained in the original publications.
Admitting documents into evidence does not obligate me to accept
the information contained therein as true or accurate; nor would
the Tribe's failure to file written objections to their
authenticity have required me to find the documents dispositive on
the issue of subject matter jurisdiction.
8. HHS refers to Indian Health Management, Inc., listed in its
exhibit 17a - d as "Rosebud Health Management, Inc." FFCL 47.
9. In its brief, HHS relies also upon this report, prepared by
another Equal Opportunity Specialist, to support its arguments on
jurisdiction. HHS Supp. Br. at 8 (citing HHS Ex. 17b). This
employee's report merely summarizes what is contained in HHS's
Exhibit 17c. Thus, the report does not establish jurisdiction or
corroborate the accuracy of the information contained in HHS's
Exhibit 17c.
10. "Ms. Golightly-Howell: Wait just a minute. I don't
understand this question. Exhibit 26 -- here is a copy of the
audit. . . . Ms. Battistoni has identified and testified regarding
the audit." Tr. 1096.
11. During its investigation, OCR dealt with the issue by
simply concluding that the Tribe was a recipient of HHS funds that
was not in compliance with the filing requirement. HHS Ex. 31, OCR
Report of Findings at 11.
12. HHS used this document to support its contention that the
Tribe received grants and assistance from HHS from September 30,
1988 to the present. HHS Posthrg. Br. at 52. This document,
prepared by Mr. Bordeaux, does cover RDO's activities during
September 1988. However, Mr. Bettelyoun was not the Tribe's
employee in September 1988, and Mr. Bordeaux mentioned only a
request for funding from HHS and his expectation that the request
would be successful. HHS Ex. 14b.
13. Elsewhere in the record, counsel for the Tribe referred to
a South Dakota Department of Health and Human Services when
cross-examining Mr. Bettelyoun. Tr. 375. The existence of such a
State entity could explain Mr. Bordeaux's answer to HHS's question
concerning funds from a Department of Health and Human Services.
14. HHS has not made this contention. As earlier noted, HHS
did not attempt to correlate any of the Assurances of Compliance
with any of the HHS grants allegedly made to the Tribe.
15. OCR's manual states that "[s]taff members must conduct
unbiased investigations and make known to their supervisors any
situation where objectivity may be influenced or impaired." HHS
Ex. 27 at 4. The foregoing provision was not made specifically
applicable to the situation of a Regional Manager who is deciding
whether to waive the filing deadline.
16. At hearing, Mr. Bettelyoun claimed that he did not know
section 504 of the Rehabilitation Act. Tr. at 170. However, Mr.
Bettelyoun admitted that, through his work as a writer of grant
proposals to the federal government, he had become familiar with
the contents of the civil rights "assurance clause" submitted by
federal grant applicants and recipients. Tr. at 186 - 87.
17. The video store was managed by Mr. Bettelyoun's brother.
Tr. 798.
18. The Tribe contended that the present proceeding was barred
by the doctrine of res judicata. However, as I previously ruled,
the doctrine of res judicata is inapplicable because HHS and the
Tribe were not parties to the prior lawsuit; nor did Mr.
Bettelyoun's lawsuit seek relief under Section 504 of the
Rehabilitation Act. See May 21, 1993 Confirmation of Rulings on
Motions.
19. HHS Ex. 31. However, after HHS acknowledged its payment of
Social Security disability benefits to Mr. Bettelyoun, HHS
described OCR's investigative finding as follows: "William
Bettelyoun was a person with a disability on the basis of his HIV
infection." HHS PF No. 89.
20. To establish a violation under section 504 of the
Rehabilitation Act, HHS must show also that the alleged
noncompliance with the Act could not be corrected by informal
means. Westchester, DAB CR191, at 51; DAB 1357, at 8. As further
discussed below, the informal means of resolving the alleged
noncompliance failed in HHS's view because OCR required the Tribe
to reinstate Mr. Bettelyoun to his former job with appropriate
provisions for making him "whole" (HHS Ex. 31 at 17), and the Tribe
failed to do so (Notice at 11, 12). For these reasons, it was
incumbent upon HHS to show that Mr. Bettelyoun has been a qualified
handicapped person within the meaning of the law from June of 1988
until the present. HHS is apparently aware of this evidentiary
requirement, as it affirmatively argues that Mr. Bettelyoun "Is" a
qualified handicapped person. E.g., HHS Posthrg. Br. at 27.
21. HHS did not object to the Tribe's asking Mr. Bettelyoun
about the treatment he received from IHS, the U.S. Bureau of Indian
Affairs, the South Dakota Department of Social Services, and the
South Dakota Department of Health and Human Services. Tr. 374 -
76. However, HHS objected when the Tribe proceeded to ask about
the "United States Social Security Department" because Mr.
Bettelyoun had not testified to having been discriminated against
by the SSA. Tr. 376. (Neither had he testified to having been
discriminated against by any of the other agencies.) I sustained
the objection because, at that point in the hearing, the
relationship between the Social Security Administration and Mr.
Bettelyoun had not yet been revealed. Tr. 377.
22. For example, HHS states, "[A] plaintiff must show that she
or he is, apart from her or his disability, otherwise qualified for
employment." HHS Posthrg. Br. at 27.
23. HHS alleged in the Notice that, "Mr. Bettelyoun is a
qualified handicapped person . . . in that he can perform the
essential functions of the job . . . [as] a Senior
Planner/Assistant Director. . . ." Notice at 5. HHS argues in its
brief: "William Bettelyoun Is A Qualified Handicapped Person." HHS
Posthrg. Br. at 27.
24. In analyzing why Mr. Bettelyoun's supervisor investigated
the nature of Mr. Bettelyoun's medical condition and whether Mr.
Bettelyoun took time off from work, I will discuss also the
evidence concerning Mr. Bettelyoun's emotional state after he
learned of his HIV diagnosis and the prognosis of a much shortened
life expectancy. Such evidence does not preponderate in favor of
HHS's position that at no time was Mr. Bettelyoun's ability to
perform his work for the Tribe affected by his diagnosis. See HHS
PF No. 23.
25. According to the Surgeon General's Report, "[t]he AIDS
virus in all infected people is essentially the same; the reactions
of individuals may differ." HHS Ex. 21c at 8. Also, according to
the Surgeon General:
Our society will also face an additional burden as we better
understand the mental health implications of infection by the AIDS
virus. Upon being informed of infection with the AIDS virus, a
young, active, vigorous person faces anxiety and depression brought
on by fears associated with social isolation, illness, and dying.
Dealing with these individual and family concerns will require the
best efforts of mental health professionals.
Id.
26. "Thus, by virtue of Mr. Bettelyoun's 1988 diagnoses with
HIV and aseptic meningitis, he would have been viewed as having
AIDS under the criteria used by SSA in 1989 to evaluate disability
claims. Hence, Mr. Bettelyoun would have been presumed disabled,
and eligible for disability benefits." HHS Posthrg. Br. at 38.
27. HHS introduced Dr. Brown's opinions concerning Mr.
Bettelyoun's condition as of 1992 even though Mr. Bettelyoun
limited his authorization for release of his medical records from
the IHS Hospital to those entries by doctors, laboratories, and
nurses from the period of January 1988 through December 1989. HHS
Ex. 9. Dr. Brown rendered his opinions as a physician who had
treated Mr. Bettelyoun at the IHS Hospital from Spring of 1991 to
January of 1992. Tr. 1070 - 74. Dr. Brown formed his opinions on
the basis of charts that were not made a part of this record and
were not subject to review by the Tribe or me due to the
restrictions Mr. Bettelyoun had placed in his release form. Tr.
1071; HHS Ex. 9. I note, in addition, that Dr. Brown is not an
expert in treating patients with the HIV infection, nor is he a
mental health expert. Tr. 1069 - 70. Also, Dr. Brown did not
express an opinion about Mr. Bettelyoun's mental fitness to perform
the duties of the RDO job. See Tr. 1074 - 75.
28. Congress delegated to the Secretary of HHS the authority to
administer the disability program and "to make rules and
regulations and to establish procedures, not inconsistent with the
provisions of this title, which are necessary or appropriate to
carry out such provisions. . . ." 42 U.S.C. 405(a).
29. The sequential evaluation process is explained at 20 C.F.R.
404.1520.
30. Mr. Bettelyoun was given the HLTLV-III test for the human
immunodeficiency virus while hospitalized in May 1988. Tr. 61.
31. The Eighth Circuit noted:
In this context, it is significant that the section 504
plaintiff must show that handicap was the sole reason for the
decision, while the Title VII plaintiff need only show that a
protected classification was a factor influencing the decision.
755 F.2d 117 n.5. Title VII prohibits employment discrimination on
the basis of race, color, religion, sex, or national origin. 42
U.S.C. 2000e-2.
32. The Tribe raised as an affirmative defense before hearing
that, given the focus of HHS's allegations, the RDO (and not the
Tribe) is a proper party to this action. Answer at 2. In
response, HHS has acknowledged that the authority to terminate HHS
funds is "limited to the particular program or activity within
which noncompliance has been found." Department's Pre-Hearing
Brief in Opposition to Respondent's Affirmative Defenses at 21.
However, HHS's Notice did not specifically limit its allegations of
discrimination to the RDO's director and employees. Notice at 6.
I denied the Tribe's prehearing motion to dismiss the action
against the Tribe because the status and role of the RDO turned on
disputed facts.
33. Mr. Bettelyoun's testimony is consistent also with Ms.
Whipple's account that he performed work for her while he was still
assigned to RDO. When he explained his subsequent formal transfer
to CHR, he said: "I was issued a memo saying that I was moved from
Resource Development Office to the CHR office since I was writing
proposals for them." Tr. 259 (emphasis added).
34. Moreover, as discussed in part II.B. of this decision, a
United States district court dismissed criminal charges against Dr.
Wayne Foster because the court believed, contrary to Mr.
Bettelyoun's testimony, that Mr. Bettelyoun had given consent for
release of his medical information. Tribe Ex. 29 at 7 - 8.
35. For example, HHS introduced a publication from its Centers
for Disease Control. HHS Ex. 12. The HHS publication defined
"other workers" as "persons in settings, such as offices, schools,
factories, and construction sites, where there is no known risk of
AIDS virus transmission." Id. at 1. Under the heading of "Other
workers sharing the same work environment," the Centers for Disease
Control gave the following advice:
Equipment contaminated with blood or other body fluids of any
worker, regardless of HTLV-III/ LAV infection status, should be
cleaned with soap and water or a detergent. A disinfectant
solution or a fresh solution of sodium hypochlorite (household
bleach ...) should be used to wipe the area after cleaning.
Id. at 2. The publication does not define "other body fluids."
Moreover, there is no evidence that more than one female employee
(Ms. Hawkass) worked in RDO at the same time that three male
employees (Mr. Bordeaux, Mr. Bettelyoun, and Mr. LaPointe) worked
in that department. Tr. 1005. As already noted above, Mr.
Bettelyoun and Mr. LaPointe assumed newly-created positions in the
department on the same day. Therefore, it is possible that after
the size of the RDO department was so expanded, the rest room used
by the department's male employees became dirtier than the one used
by the female RDO employee.
36. Ms. Two Charger's statement was marked as HHS Ex. 38 and
admitted into evidence. Tr. 531 - 32.
37. Later during the hearing, he testified to having had access
to a typewriter in a meeting room, which he took "upstairs" to use.
Tr. 264.
38. In an earlier statement given to OCR, this same witness
said she overheard Mr. Bordeaux, Sr., make such remarks to another
person (whose identity she could not recall) during a break in the
Council meeting. HHS Ex. 25n.
According to this witness, who served on the Tribal Council for
eight years, council members are legislators dealing with issues
that affect the Indian people who live on reservations. Tr. 535.
39. One of the Social Service Committee members testified that
she worked on the Committee as part of her responsibilities while
serving on the Tribal Council. Tr. 548 - 49. She and other
members of the Committee offered the Committee's assistance to Mr.
Bettelyoun because its members heard he was having problems and he
had come into the office used by the Committee (they did not go to
him). Tr. 546 - 47, 549 - 50. Mr. Bettelyoun never availed
himself of the Committee's help. Tr. 550, 554.
40. In Ms. Whipple's opinion, Mr. Bordeaux was confused about
Mr. Bettelyoun's status during the period he worked for her. Tr.
454 - 55. The personnel office may not have made the formal
changes, but she considered him an employee of her department. Tr.
454. Mr. Bordeaux, on the other hand, considered himself Mr.
Bettelyoun's supervisor at the same time and made several calls a
day to Ms. Whipple to check on Mr. Bettelyoun's whereabouts. Tr.
455, 1013. The foregoing evidence persuades me that Mr. Bordeaux's
attempts to keep track of Mr. Bettelyoun's movements were due to
confusion about Mr. Bettelyoun's status, not due to Mr. Bordeaux's
intent to treat Mr. Bettelyoun differently because of his HIV
infection, as alleged by HHS. See HHS PF No. 52.
41. This witness, Rose Cordier, on direct examination by HHS,
first testified to having heard no tribal official make any
negative statement concerning Mr. Bettelyoun. Tr. 807 - 08. She
testified also that Mr. Lunderman did not say he wanted to fire Mr.
Bettelyoun. Tr. 802. Having obtained these unequivocal answers
under oath from Ms. Cordier without any indication that her memory
had failed, HHS then had Ms. Cordier read an earlier statement of
hers that was summarized by an OCR employee during the
investigation of Mr. Bettelyoun's complaint (see HHS Ex. 25h) and
change her testimony at hearing to indicate that she believed Mr.
Lunderman was indicating with words such as "we're going to have to
do something about it" as meaning that Mr. Lunderman wanted Mr.
Bettelyoun fired. Tr. 810 - 14.
42. Due to a head injury, Ms. Whipple was not always able to
recall the dates of events. Tr. 407 - 08. There was no testimony
indicating that her recollection of events or time spans was
impaired. Nor did HHS, who called her to testify, so allege.
43. The inferences from Ms. Whipple's testimony conflict with
Mr. Bettelyoun's allegations that the conditions in RDO were very
difficult for him to tolerate.
44. Mr. Bettelyoun claimed that, during his employment with the
Tribe from June 6 until August 25, 1988, he worked on four grant
proposals, two of which sought funding for AIDS education. Tr. 184
- 85. Mr. Bordeaux testified that Mr. Bettelyoun only wrote two
proposals during the employment period at issue; he had drafted the
other two (which included mentions of AIDS education) at an earlier
time, while he was with the Spotted Tail Crisis Center. Tr. 993.
The two grant proposals Mr. Bettelyoun prepared while employed in
his RDO position did not receive approval for funding. Tr. 994.
45. Mr. Bettelyoun testified that after his HIV infection
became known, he worked at home 50 percent or more of his work day.
Tr. 140 - 41. He claimed to have worked at the office
approximately 75 percent of the time before his HIV infection
became known. Tr. 70. HHS contends that this change was evidence
of discrimination. HHS PF No. 68.
46. Mr. Bettelyoun probably would have earned a gross income of
approximately $5425 during the same four-month period by working
for the Tribe. ($7.75 x 40 hrs. x 17.5 weeks = $5425)
47. According to a witness who worked with Mr. Bettelyoun in
making these presentations, Mr. Bettelyoun sought retroactive
payments of $250 per session (plus per diem, travel, lodging and
related expenses) because he thought the original contract price of
$100 (plus per diem, travel, lodging and related expenses) for each
session was too low. Tr. 870 - 71.