02970004
07-24-2000
)
Kathleen Atkins v. Social Security Administration
02970004
July 24, 2000
Kathleen Atkins, )
Grievant, )
)
v. ) Appeal No. 02970004
) Agency No. FL-95-R-0005
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Grievant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from an arbitration decision concerning her grievance
against the agency. In her grievance, grievant alleged that the agency
discriminated against her in violation of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq., and Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted by
the Commission in accordance with the provisions of 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the arbitrator properly determined that
grievant failed to establish that the agency unlawfully discriminated
against her based on physical disability (deafness) and reprisal (prior
EEO activity) with regard to four disciplinary actions taken against her.
BACKGROUND
At the time of the events at issue, grievant had been employed by
the agency for 17 years, and was then employed at its West Palm Beach,
Florida, facility as a Claims Clerk, GS-5. Grievant is profoundly deaf,
and communicates with others through American Sign Language (ASL).
In 1993, apparently in response to an EEO complaint filed by grievant,
the agency hired an ASL interpreter (the Interpreter) for the benefit
of grievant and two other deaf employees. It appears from the record,
however, that in addition to ASL interpretation, the Interpreter performs
other work related to the agency's mission.
On December 14, 1994, grievant filed a grievance regarding four
disciplinary actions taken against her. The record reflects that these
were the first disciplinary actions taken against grievant during her
17-year tenure with the agency. Grievant alleged, inter alia, that the
disciplinary actions, as well as two reprimands not at issue herein,
were taken in retaliation for her EEO activity.<2> The four actions at
issue herein are as follows:
June 30, 1994: Grievant received a written reprimand for �insubordination
and for insulting, demeaning and discourteous behavior towards [her]
supervisor.� According to the charge, the reprimand stemmed from an
incident in which grievant had been called to her supervisor's office in
order to be told that she [grievant] was not to instruct the mail clerk on
what his job duties were, a matter which had previously been discussed
with her. During this discussion, which also covered the nature of
grievant's own duties, grievant twice made the gesture of moving her index
finger around in a circle next to her ear. The Interpreter interpreted
this gesture to the supervisor as grievant calling her supervisor �a crazy
woman.� Grievant maintains that what she actually signed was that it was
a �crazy situation.� Her supervisor, for her part, argued that she did
not have to understand ASL to know what the gesture meant. Grievant notes
on appeal that she was the only party with first-hand knowledge of her
interaction with the mail clerk to give testimony at the arbitration
hearing, and that testimony given by grievant's second-line supervisor
reflected that mail-room duties were part of grievant's assigned duties.
July 6, 1994: Grievant received a proposal (subsequently upheld) for a
one-day suspension without pay for failure to complete a work assignment
given to her by a supervisor, and for insubordination. According to
the charge, on Thursday, June 30, 1994, one of the supervisors allegedly
handed grievant an application for a Social Security card that required
priority processing so that the applicant would be able to work over
the holiday weekend. On Tuesday, July 5, 1994, the application was
discovered, unprocessed, in grievant's in-box. The agency stated that
when grievant was questioned regarding the applications, she denied
receiving it. Grievant, however, maintains that she actually stated she
had not personally received the application, i.e., it was not, in fact,
handed to her. There is also a dispute as to whether, as the agency
claims, there was a stick-on note attached to the application informing
grievant that the application required priority processing. The stick-on
note was not produced by the agency, although the proposal to suspend
stated that the stick-on note was still attached when the document was
later found in grievant's in-box. The notice of suspension indicates that
the suspension was predicated on the June 30, 1994, written reprimand.
August 3, 1994: Grievant received a proposal (subsequently upheld) for
a 14-day suspension without pay for insubordination, violation of the
agency's standards of conduct on courtesy, improper and hostile touching
of another employee, and the creation of a hostile work environment for
a co-worker. According to the charge, on July 22, 1994, grievant and the
Interpreter were involved in an argument regarding work which grievant
regarded as her responsibility, but which the Interpreter had performed.
A supervisor intervened and directed grievant to drop the matter,
because the Interpreter had been directed by supervisory personnel
to perform the work in question. After the supervisor walked away,
grievant attempted to engage the Interpreter in further conversation,
apparently regarding the same matter, but the Interpreter did not respond
to her. Grievant then began �poking and prodding [the Interpreter]
in the arm with [her] stiffened fingers.� The record reflects that
in the disciplinary discussion which ensued, management refused to
provide grievant with an �outside� ASL interpreter as she requested and
as provided by agency rules. Rather, management required grievant to
proceed with the disciplinary discussion utilizing the services of the
Interpreter, the other party to the argument. Management personnel
involved in this action had no first-hand knowledge of the events at
issue, and the eyewitness testimony of an agency witness refuted the
Interpreter's account of the incident. Grievant notes on appeal that
the account given by the Interpreter, upon which the disciplinary action
was based, grew �more embellished with each retelling.� The notice
of suspension indicates that suspension was predicated on the prior
discipline received by grievant.
September 20, 1994: Grievant received a written reprimand for being
insubordinate and rude. According to the charge, on August 17, 1994,
grievant refused to look for a missing computer print-out sought by
the Interpreter even after her supervisor requested her to do so, then
refused to speak to her supervisor through the Interpreter, refused
to look at the Interpreter, and mimicked the Interpreter's signing.
Grievant notes on appeal that it takes about one minute to request and
print the query contained in the missing print-out, and that it was not
uncommon for the printouts to be misplaced as employees picked up work
from shared printers. Grievant's supervisor acknowledged that it is
common practice for an employee simply to request another copy of the
printout, and that the Interpreter is the only employee who has ever
come forward demanding a time-consuming search for such a document.
The written reprimand indicated that the reprimand was not predicated
on the prior discipline received by grievant, as she was already under
suspension.
ANALYSIS AND FINDINGS
The Commission's regulations, in conjunction with 5 U.S.C. � 7121(d)
of the Civil Service Reform Act, provide that where a negotiated
grievance procedure permits an allegation of discrimination to be
raised and considered, an employee wishing to raise an allegation of
discrimination must elect the forum in which to pursue the matter.
29 C.F.R. � 1614.301(a). Thus, such a complaint of alleged employment
discrimination may be raised under either the statutory procedure (the
EEO process) or the negotiated grievance procedure, but not both. Id.
If the employee should elect to raise an issue of discrimination in
the negotiated grievance procedure, the employee has the right to
appeal the agency's final decision on the grievance concerning the
discrimination issue to the Commission. 29 C.F.R. � 1614.401(d).
The Commission's regulations provide that a grievant may appeal to
the Commission from a final decision of the agency, the arbitrator, or
the Federal Labor Relations Authority on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised. Id.
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the grievant, grievant
herein, to initially establish that there is some substance to his or her
allegation. In order to accomplish this burden grievant must establish
a prima facie case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). This means that grievant must present a body of
evidence such that, were it not rebutted, the trier of fact could conclude
that unlawful discrimination did occur. The burden then shifts to the
agency to articulate a legitimate, non-discriminatory explanation for
its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). In this regard, the agency need only produce evidence
sufficient �to allow the trier of fact rationally to conclude� that the
agency's action was not based on unlawful discrimination. Id. at 257.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, �going forward,� may shift, the burden of persuasion,
by a preponderance of the evidence, remains at all times on grievant.
Burdine, 450 U.S. at 256.
Grievant has established a prima facie case of reprisal discrimination.
Grievant engaged in protected activity by filing a formal EEO complaint,
for which the investigation had just been concluded at the time of the
events at issue herein; she subsequently was disadvantaged by receiving
the four disciplinary actions set forth above; the management personnel
involved in the disciplinary actions were aware of grievant's prior EEO
activity; and the temporal relationship of grievant's protected activity
to the events at issue herein is such that a causal connection fairly
may be inferred. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed, 545 F.2d
222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80, 86
(D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc., 683
F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
In order to establish a prima facie case of disability discrimination,
grievant must prove, by a preponderance of the evidence, that she was
treated differently than individuals not within her protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of grievant. See Sisson v. Helms, 751
F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
As a threshold matter, grievant must establish that she is a �qualified
individual with disability� within the meaning of the Rehabilitation Act.
The Commission's regulations define �individual with disability� as a
person who has, has a record of, or is regarded as having a physical
or mental impairment which substantially limits one or more of that
person's major life activities, including, but not limited to, self-care,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. �� 1630.2(g)-(l).<3> The regulations
define a �qualified individual with disability� as a person �who, with
or without reasonable accommodation, can perform the essential functions
of the position in question ....� 29 C.F.R. � 1630.2(m).
Here, there is no question that grievant is a �qualified individual
with disability.� Grievant is profoundly deaf, and cannot communicate
by verbal speech. Further, there is no evidence, nor has the agency
even suggested, that grievant's disability in any way prevents her from
performing the essential functions of her position; moreover, the record
reflects that grievant's performance has been rated �fully successful.�
Whether grievant has established a prima facie case of disparate
treatment disability discrimination is a less definitive matter.
There is no comparative evidence regarding the discipline imposed on
grievant versus that imposed on other employees. However, the very
circumstances which have led to this juncture, particularly the agency's
insistence that grievant utilize the services of the Interpreter despite
awareness of the problematic relationship between them, are sufficient
to raise the inference that grievant was treated unfavorably on account
of her disability.<4>
The burden now shifts to the agency to proffer a legitimate,
non-discriminatory explanation for its actions. The Commission finds
that the agency has met this very light burden by setting forth the
circumstances which led to each incident of discipline, as delineated
above.
The burden now shifts back to grievant to establish that the agency's
actions were a pretext for disability discrimination. The Commission
finds that grievant has met this burden. Grievant persuasively argues
that each incident of discipline depended on some type of communication
between grievant and others, but that in each incident, management
proceeded either with no first-hand knowledge of what had transpired
and/or in reliance upon statements by the Interpreter, who was hardly
a disinterested party.
In each of the four incidents, grievant requested � and under agency rules
was entitled to have � the services of an �outside� ASL interpreter.
Instead, in each instance, two of which directly arose from actions of
the Interpreter, the agency insisted that grievant communicate through the
Interpreter, notwithstanding its knowledge of the acrimonious relationship
which had developed between them; notwithstanding its knowledge
that grievant and her deaf coworkers challenged the Interpreter's
qualifications as being inadequate to the services required of her; and
notwithstanding that the Interpreter clearly had a stake in the outcome of
at least two, if not all of these matters. For example, in the meeting
regarding the mail room, grievant maintains that she signed it was �a
crazy situation,� which the Interpreter conveyed to the supervisor as
grievant calling the supervisor �a crazy woman.� The supervisor refused
even to entertain the possibility that the Interpreter had erred, stating
that she (the supervisor) knew what the �crazy� gesture meant. However,
the sign for �crazy� had to be accompanied by some other sign � either
�situation� or �woman� -- to complete the thought. The supervisor did
not profess to know either of those signs, leaving only grievant's word
against that of the Interpreter as to whether grievant's statement had
been correctly interpreted. Under the circumstances, the accuracy of
the interpretation is not without doubt. In this regard, the Commission
notes that, according to evidence of record, the Interpreter holds the
lowest possible qualification. She is only qualified to interpret in
one-on-one situations where there is opportunity for clarification and
feed-back and which are of a non-technical nature, and the qualification
guidelines �strongly suggest� that an individual at this level function
under the close supervision of a more highly qualified interpreter.<5>
Notwithstanding favorable comments from deaf members of the public who
have used the Interpreter's services, grievant and her two deaf coworkers,
all of whom are fluent in ASL, have criticized the Interpreter's abilities
as being inadequate, inaccurate, and insufficient to meet their needs.
The Commission notes that, while in each incident cited by the agency
there may actually have been an element of insubordination which
might have supported a disciplinary action, the involvement of the
Interpreter seriously calls into question whether there was, in fact,
grounds for the type of discipline that was imposed in each instance.
With regard to the June 30, 1994, reprimand, grievant may, in fact, have
been insubordinate with regard to the mail-room duties. However, she
was also charged with �insulting, demeaning, and discourteous behavior
towards a supervisor,� which clearly stems from the Interpreter having
stated that grievant called her supervisor a �crazy woman� as opposed
to having said that it was a �crazy situation,� and from the supervisor
having refused to even entertain the possibility that the Interpreter
was in error. There is no evidence that grievant would have received
any discipline based solely on the discussion regarding mail-room duties.
The taint upon the June 30, 1994, written reprimand in turn tainted
the July 6, 1994, one-day suspension imposed on account of grievant's
failure to complete a priority assignment. The notice of suspension
clearly states that the penalty was predicated on grievant having
received the earlier written reprimand. There is no evidence that in
the absence of the written reprimand, grievant would have received the
one-day suspension. Likewise, the August 3, 1994, 14-day suspension
clearly states that it was predicated on the prior discipline received
by grievant, and there is no evidence that grievant would have received
the suspension in the absence of the prior discipline. Lastly, although
the September 20, 1994, letter of reprimand states that grievant was not
disciplined more severely because she was already under a suspension,
there is no evidence that she would have received even a written reprimand
for this incident in the absence of the prior discipline.
The Commission further finds that the agency's actions in denying grievant
the services of an outside interpreter amount to a failure to reasonably
accommodate grievant's disability. A disabled employee, while not
entitled to the accommodation of his or her choice, is entitled to an
effective accommodation. E.g., Parnofiello v. Dept. of Justice, EEOC
Appeal No. 01966451 (June 30, 1999). Under the circumstances of this
case -- the acrimonious relationship of grievant and the Interpreter,
the Interpreter's apparent lack of ability, and the Interpreter's
personal involvement in most of the events at issue -- the accommodation
provided can hardly be said to be effective. Particularly with regard
to the incident wherein grievant and the Interpreter were involved in
an argument, the Commission finds it incomprehensible that the agency
could think it a reasonable accommodation to force grievant either to
utilize the services of the Interpreter or to remain silent. In this
regard, the record indicates that grievant was threatened with loss of
her job if she did not use the services of the Interpreter during the
disciplinary discussion that followed the argument.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the decision of the arbitrator, and to find that the agency
discriminated against grievant based on disability and reprisal, as
alleged.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
(1) Within fifteen (15) days of the date on which this decision becomes
final, the agency shall expunge from all records, including but not
limited to grievant's official personnel file, any and all reference
to the four disciplinary actions identified herein.
(2) The agency shall tender to grievant back pay and benefits lost on
account of the two suspensions, in accordance with the provisions below.
(3) Within ninety (90) days of the date on which this decision
becomes final, the agency shall provide EEO training to all
managerial/supervisory personnel involved in the issuance of the four
disciplinary actions.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due grievant, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. Grievant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to grievant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Grievant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled �Implementation of the Commission's
Decision.�
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 of the
agency's calculation of back pay and other benefits due grievant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its West Palm Beach, Florida, facility
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 (H1199)
If grievant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 grievant. If the
agency does not comply with the Commission's order, grievant may petition
the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a).
Grievant 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 64 Fed. Reg. 37,644, 37,659-60 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �� 1614.407,
1614.408), and 29 C.F.R. � 1614.503(g). Alternatively, grievant 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)(Supp. V 1993). If grievant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.409).
STATEMENT OF RIGHTS
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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:
July 24, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, 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 that 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 Social Security Administration, West Palm Beach, Florida facility
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The Social Security Administration, West Palm Beach, Florida facility
has been found to have discriminated against the individual affected
by the Commission's finding. The Social Security Administration,
West Palm Beach, Florida facility shall expunge from the affected
individual's records all mention of specified disciplinary actions,
shall pay the affected individual back pay and benefits, and shall
pay the affected individual's reasonable attorney fees and costs.
The Social Security Administration, West Palm Beach, Florida facility
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 Social Security Administration, West Palm Beach, Florida facility
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
equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2It is noted that the processing of grievant's earlier EEO complaint
was on-going at the time of the events at issue herein. The report of
investigation was received by the agency on June 8, 1994, and by grievant
on June 27, 1994, and grievant submitted her request for a hearing to the
agency (as was then required by the Commission's regulations) on July 20,
1994.
3The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.
4The �failure to accommodate� aspect of grievant's claim will be addressed
separately below.
5There is no evidence that the Interpreter's ASL interpretation was ever
subject to supervision of any kind.