)

Equal Employment Opportunity CommissionJul 24, 2000
02970004 (E.E.O.C. Jul. 24, 2000)

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.