Mark M. Saylor v. United States Postal Service 01A05281 11-15-02 . Mark M. Saylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A05281 Agency No. 1E-853-0043-99 DECISION INTRODUCTION Complainant timely initiated an appeal from a final agency decision (FAD) concerning his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Commission REVERSES the agency's final decision. ISSUE PRESENTED The issue presented herein is whether complainant was discriminated against on the bases of disability (deafness) when, on March 10, 1999, he was not accommodated with an interpreter during a safety talk. BACKGROUND During the relevant time, complainant was employed as a Mail Processor at the agency's Phoenix Processing/Distribution Center facility in Phoenix, Arizona. The record reveals that, on March 10, 1999, complainant's supervisor (Supervisor) conducted a safety talk without providing an interpreter for complainant. The safety talk consisted of a closed captioned video, lasting approximately fifteen (15) minutes, and verbal communication, lasting approximately forty-five (45) minutes. Complainant asserted that he could not fully participate in the discussion, and that he became “upset, frustrated, [and] isolated.” He testified that he could not understand anything that the Supervisor said, nor could he get information from his coworkers because they did not want to be bothered or thought the information was unimportant. He contended that the facility continued to violate its policy of providing certified interpreters until a July 15, 1999 memorandum from the Senior Plant Manager advised all supervisors that they must schedule certified interpreters for “safety meetings, performance meetings, crew meetings, grievance meetings, performance discussions, fact findings, etc. when the meeting involves a hearing impaired employee.” The Supervisor acknowledged that he conducted the safety talk without a certified interpreter. However, he testified that he showed a safety video with closed captioning, provided complainant with written material regarding the discussion, and offered to answer questions for complainant. Complainant sought EEO counseling and subsequently filed a formal complaint on November 27, 1999. In his affidavit, complainant described feeling “very upset, frustrated, overwhelmed, isolated, and left out with no respect.” He further stated that the agency's failure to provide interpreters for meetings, even after grievance settlements, “hurt [him] deeply.” At the conclusion of the investigation, complainant was informed of his right to request a hearing before an EEOC Administrative Judge (AJ) or alternatively, to receive a final decision by the agency. When complainant failed to respond within the time period specified in 29 C.F.R. § 1614.108(f), the agency issued a final decision. In its FAD, the agency concluded that complainant failed to show that he was discriminated against on the basis of his disability because the agency continues to accommodate him during safety and other talks. The agency noted managements' July 15, 1999 memorandum, requiring certified interpreters, and asserted that certified interpreters are provided for safety talks at the facility.<1> On appeal, complainant contends that there is a distortion of statements and documents contained in the Investigative File. Complainant also requests a hearing before an AJ and states that he believed he had 180 days from the date he received the Investigative File to request a hearing.<2> The agency makes no statement on appeal. ANALYSIS AND FINDINGS Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. We must first determine whether complainant is an otherwise qualified individual with a disability. Complainant is deaf and uses sign language for communication. As he has an impairment that substantially limits his major life activity of hearing, he is an individual with a disability, and therefore is covered under the Rehabilitation Act. Complainant also must show that he is a "qualified" individual with a disability within the meaning of 29 C.F.R. § 1630.2(m). The term “qualified individual with a disability,” with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The record reflects that complainant is a qualified individual with a disability because he is able to perform the essential functions of his position with a reasonable accommodation. The Commission notes that the agency is obligated to provide reasonable accommodation, such as an interpreter, in order that an employee may attend training programs. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Question and Answer 15, (October 17, 2002)(available at www.eeoc.gov.). Moreover, reasonable accommodation must be effective, i.e., give the individual with a disability an equally effective opportunity to perform the essential job functions or enjoy equal benefits and privileges. EEOC Technical Assistance Manual on the Employment Provisions (Title 1) of the Americans with Disabilities Act, Chapter 3.7 (January 1992). The agency does not contest that complainant is entitled to the reasonable accommodation of an interpreter when he receives training. Rather, in its FAD, it stated that, during the safety talk, the Supervisor showed a video that had closed captioning, provided complainant with written material regarding the discussion, and offered to answer questions for complainant. Complainant testified that, with the exception of the 15 minute video, he did not understand any of the safety information discussed during the meeting. He also averred that the Supervisor never provided him with the promised materials. The record reveals and complainant has shown that the Supervisor's attempts to accommodate complainant were insufficient. The agency further asserted that certified interpreters are provided at the facility for safety talks. The record reflects, however, that on March 10, 1999, complainant was not provided an interpreter as required. The Commission finds no evidence in the record to support a finding that the provision of interpreter services would have been unduly costly, extensive, substantial or disruptive or that it would have fundamentally altered the nature of the agency's operation. See 29 C.F.R. 1630.2(p). We note that the agency has failed to provide evidence that it attempted to contract the services of an interpreter in contemplation of the safety talk. Accordingly, the Commission finds that the agency discriminated against complainant when, on March 10, 1999, it denied him an effective and reasonable accommodation for the safety talk. CONCLUSION Therefore, we REVERSE the agency's final decision and remand this case to the agency to take remedial actions in accordance with this decision and Order below.<3> ORDER (C0900) The agency is ordered to take the following remedial action: Within ten (10) calendar days of the date this decision becomes final, the agency shall give complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty (40) calendar days of the date complainant receives the agency's notice. The agency shall complete the investigation on the claim for compensatory damages within forty (40) calendar days of the date the agency receives complainant's claim for compensatory damages. Thereafter, the agency shall process the claim in accordance with 29 C.F.R. § 1614.108(f). The agency should provide training as to its obligations under the Rehabilitation Act to management officials, including those who handled the instant situation. The agency shall consider taking disciplinary action against the management official(s) identified as being responsible for the discrimination perpetrated against complainant. The agency shall report its decision. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision becomes final. The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Phoenix Processing/Distribution Center in Phoenix, Arizona copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Frances M. Hart Executive Officer Executive Secretariat ___11-15-02_______________ Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission ("EEOC") dated ___________ which found that a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., has occurred at this facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The United States Postal Service, Phoenix Processing/Distribution Center in Phoenix, Arizona supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The United States Postal Service, Phoenix Processing/Distribution Center in Phoenix, Arizona has been found to have discriminated against an employee when it failed to provide him a reasonable accommodation. As a result, the agency has been ordered by the EEOC to take corrective action and to award proven compensatory damages to the employee. Further, the agency has been ordered to provide training in the requirements of the Rehabilitation Act to the responsible management officials at the United States Postal Service, Phoenix Processing/Distribution Center in Phoenix, Arizona, who were responsible for engaging in discrimination. The United States Postal Service, Phoenix Processing/Distribution Center in Phoenix, Arizona will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all Federal equal employment opportunity laws and will not retaliate against employees who file EEO complaints. The United States Postal Service, Phoenix Processing/Distribution Center in Phoenix, Arizona will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal EEO law. ______________________________ Date Posted: ____________________ Posting Expires: ________________ 29 C.F.R. Part 1614 1 Complainant filed a grievance regarding the safety talk which was settled to ensure that certified interpreters would be provided. 2 The record reflects that the agency properly notified complainant of his right to request a hearing before an AJ or to receive a final decision by the agency in accordance with 29 C.F.R. § 1614.108(f). 3 The Commission notes that complainant was excluded from participation in the meeting and the record indicates that the agency did not make a “good faith effort" to reasonably accommodate complainant. Accordingly, the agency is liable for appropriate proven compensatory damages based on the finding of denial of reasonable accommodation. See Funk v. United States Postal Service, EEOC Appeal No. 01984772 (July 26, 2001).