U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darius C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120160004 Agency No. 1K-221-0006-15 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's August 7, 2015 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Handler at the Agency's Northern Virginia Processing and Distribution Center in Merrifield, Virginia. On February 23, 2015, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on the basis of disability (deafness) when, in October 2014, management failed to provide an interpreter during a service talk. The record reflects that on October 11, 2014, the Supervisor, Distribution Operations ("Supervisor 1") gathered employees together, including Complainant, to have a service talk. Complainant asked if a sign language interpreter would be available so he would understand what was being said. Supervisor 1 did not have an interpreter, but said that he would repeat the meeting the next day (October 12, 2014), and would submit a request for an interpreter for that time. Supervisor 1 held the October 11, 2014 service talk, which lasted about 25 minutes. Complainant stated that it was his understanding that the service talk was scheduled in advance, but he was not even provided a written handout of the service talk. Complainant stated he felt uncomfortable and frustrated because he could only watch the supervisor and other employees conversing. Complainant stated that the next day, October 12, 2014, he followed up with management and asked if there would be a second meeting regarding the matters discussed at the meeting of October 11, 2014. However, he was told that there would be no meeting because there was no interpreter available. Supervisor 1 stated that on October 11, 2014, he was instructed by his manager to give a service talk immediately. Supervisor 1 noted that Complainant had come into the area from another area, and that he had not planned to give a service talk until he was told to do so. Supervisor 1 stated that after Complainant requested a sign language interpreter, he called Supervisor 2 and arranged for interpreting service for the next day for a repeat of the service talk. Supervisor 2 acknowledged no interpreter was provided to Complainant for the service talk on October 11, 2014, but said that the service talk was not scheduled in advance and that it was a last minute arrangement. Supervisor 2 stated that the normal procedure was for each pay location to have a service talk on a designated day and an interpreter is provided. Supervisor 2 further stated that on October 12, 2014, an interpreter was scheduled for Complainant but the interpreter never showed up. On August 7, 2015, the Agency issued a final decision of Complainant's denial of reasonable accommodation claim, finding no discrimination. The Agency determined that Complainant was a qualified individual with a disability. The Agency then acknowledged that Complainant had requested an interpreter for the service talk. However, the Agency determined it did not violate the Rehabilitation Act because management made attempts to secure an interpreter for the alternative October 12, 2014 service talk, but the interpreter did not appear. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal form a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, VI.A. (August 5, 2015)(explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "reviews the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and ... issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). As a threshold matter, we note that although the Agency made various references to the subject claim in the context of a reasonable accommodation request, the focus of its analysis was clearly viewing the claim in terms of disparate treatment. We determine that Complainant's claim of disability discrimination is more appropriately classified as a failure to accommodate, and not a disparate treatment claim. We will therefore analyze this case as a failure to accommodate claim. EEOC Regulation 29 C.F.R. § 1630.2(g) defines an individual with a disability as one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(h)(2) defines "major life activities" as including such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The Agency does not dispute that Complainant is a qualified individual with a disability. In the instant case, Complainant sought to have interpreting service for a lengthy service talk on October 11, 2014. An employer must provide reasonable accommodation to enable an employee with a disability to have equal access to information communicated in the workplace. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (March 1, 1999) at question 14. We have previously held that "for a severely hearing impaired employee who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies or assignments, and for every disciplinary action so that the employee can understand what is occurring at any and every crucial time in his employment career, whether or not he asks for an interpreter." Feris v. Environmental Protection Agency, EEOC Appeal No. 01934828 (August 10, 1995); see also Funk v. United States Postal Service, EEOC Appeal No. 01984772 (July 27, 2001); Thomas v. United States Postal Service, EEOC Appeal No. 01982321 (February 2, 2001) The Agency maintains that the October 11, 2014 service talk was conducted at the last minute and Agency management attempted to arrange for another meeting the next day with an interpreter. However, this meeting never occurred because no interpreter appeared. Consequently, Complainant is denied the same information received by others. See, e.g., Bratsch v. United States Postal Service, EEOC Appeal No. 01950296 (April 18, 1996). Under certain circumstances, an agency may escape liability for compensatory damages if it acted in good faith in its effort to reasonably accommodate an employee. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disability At, No. 915.002, at 13, footnote 24 (October 17, 2002). ([I]n situations where an employer fails to provide a reasonable accommodation (and undue hardship would not be a valid defense), evidence that the employer engaged in an interactive process can demonstrate an "effort which can protect an employer from having to pay punitive and certain compensatory damages."); where an agency makes a "good faith" effort to reasonably accommodate the complainant, it may be insulated from an obligation to pay compensatory damages). In determining whether the agency here acted in "good faith" we consider past cases in which the issue of "good faith" has arisen. For example, in Mees v. United States Postal Service, EEOC Appeal No. 01971964 (September 11, 2000), the Commission found that the agency did not make a "good faith" effort to reasonably accommodate complainant, noting that the agency failed to demonstrate that it conducted a search for an accommodation for the complainant. Here, the Agency's tepid assurance to Complainant that a second service talk on October 12, 2014, would have an interpreter available was not backed by any action. The Agency asserts that it made the effort to secure interpreter services, despite the non-appearance on an interpreter. We find that under the circumstance of this case, the Agency's actions provided mere "lip service" to Complainant's clear request for reasonable accommodation, and the Agency has not demonstrated it made good faith efforts to comply with that request. Therefore, after a careful review of the record, , 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. ORDER The Agency is ordered to take the following remedial action: 1. The Agency will immediately ensure that Complainant is provided with a qualified sign language interpreter when required during his employment, including at a minimum for safety talks, discussions on work procedures, policies or assignments, for performance evaluations and for every pre-disciplinary and disciplinary action so that the employee can understand what is occurring at any and every crucial time in the employee's employment career. 2. Within sixty (60) calendars of the date this decision becomes final, the Agency shall provide training to all involved managers and supervisors at its Northern Virginia Processing and Distribution Center regarding the Agency's obligation to provide reasonable accommodation under the Rehabilitation Act to qualified individuals with disabilities, and specifically with respect to the requirements for hearing impaired employees as reviewed in this decision. 3. Within sixty (60) calendar days of this decision becoming final, the Agency shall conduct a supplemental investigation of Complainant's entitlement to compensatory damages. The Agency is directed to inform Complainant about the legal standards associated with providing compensatory damages and give Complainant examples of the types of evidence used to support a claim for compensatory damages. Complainant shall be given 30 calendar days from the date he receives the Agency's notice to provide all supporting evidence of his claim for compensatory damages. Within thirty (30) calendar days of the date the Agency receives Complainant's submission, the Agency shall issue a new final decision determining Complainant's entitlement to compensatory damages, together with appropriate appeal rights. 4. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall consider taking disciplinary action against Supervisor 1 and Supervisor 2. 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. 5. 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 (G0914) The Agency is ordered to post at its Merrifield, Virginia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii), he 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 (K0610) 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 77960, Washington, DC 20013. 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 (M0610) 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), at 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 77960, Washington, DC 20013. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 1, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160004 2 0120160004