02980014
06-13-2001
Agency.
Maria Vitale v. Social Security Administration
02980014
June 13, 2001
.
Maria Vitale,
Grievant,
v.
Larry G. Massanari,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 02980014
Agency No. CL-97-R-0017
DECISION
INTRODUCTION
Grievant timely initiated an appeal of a final decision by an arbitrator
(final decision) concerning her grievance of unlawful employment
discrimination on the basis of disability (profound deafness) in violation
of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. For the reasons stated herein, the arbitrator's final decision
is reversed.
ISSUE PRESENTED
The issue on appeal is whether grievant has established that the agency
discriminated against her on the above-referenced basis when it failed to
provide her an accommodation for her disability, which would have allowed
her to be selected for a Service Representative (Svce Rep), GS-8 position.
BACKGROUND
Grievant is profoundly deaf and has been so since birth. She was
employed as a Tele-service Representative (TS Rep), GS-8, at a state of
Washington facility of the agency.<1> Grievant began her TS Rep position
in 1993 and as such, she provided a full range of customer service
assistance to hearing impaired individuals who called the agency on a
toll free telephone number and communicated through a Telecommunication
Device for the Deaf (TDD). In 1993, due to personal problems, grievant
requested a �hardship transfer�<2> from her TS Rep position in Washington
state to the Chicago region, which included the Cincinnati, Ohio area
(grievant's �home town�). The agency did not respond to grievant's
initial request so she resubmitted it, again without response. In 1996,
grievant discovered that the Chicago region had several vacant Svce Rep,
GS-8 positions so she once again requested a �hardship transfer.� Due
to grievant's personal circumstances and in anticipation of receiving
one of the vacant positions, grievant relocated to Ohio. She was on
leave without pay for several months and then accepted a �hardship
transfer� to a clerical, GS-5 position in a Cincinnati, Ohio facility
of the agency. Grievant, believing she was a victim of discrimination,
filed a grievance under the negotiated grievance procedure established
by her agency and her representative union. Grievant, in her grievance,
alleged that the agency discriminated against her based on disability
when it failed to accommodate her disability for a �hardship transfer�
to a Svce Rep position.
The agency stated that grievant was not accommodated and thus she was
not placed in the Svce Rep position because she could not perform an
essential function of the position, i.e., face-to-face interviewing.
Specifically, the agency stated that grievant would need a full-time
sign language interpreter (interpreter) to successfully perform the
above-stated essential function because (1) claimant interviews are
conducted on a walk-in basis, (2) the office tries to conduct claimant
interviews as quickly as possible because of heavy demand and expectations
by the public, and (3) many claimants are limited by either physical
impairment, education, economics or language, which could further
complicate the interview process. The agency indicated that it does not
hire one-on-one<3> full-time interpreters because it is very costly<4>
and can be disruptive to the office, e.g., if the interpreter takes
unscheduled leave the office would have to make significant adjustments
to allow a deaf employee to perform his/her work on that particular day
or days. The agency stated further that it researched the possibility
of connecting a TDD to the Cincinnati office, which would allow grievant
to assist with nationwide calls from hearing impaired claimants, but
was told the plan was not feasible in terms of good customer service.
The grievance was not resolved under the negotiated grievance
procedure and thus, was assigned to a neutral Arbitrator. A hearing
was held and the Arbitrator concluded that grievant could not perform
the essential functions of the position and that the provision of a
full-time interpreter by the agency was not a reasonable accommodation.
This appeal by grievant followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.401(d), �[a] grievant may appeal the
final decision of the agency, the arbitrator or the Federal Labor
Relations Authority (FLRA) on the grievance when an issue of employment
discrimination was raised in a negotiated grievance procedure that
permits such issues to be raised.�
Grievant is profoundly deaf and the agency does not dispute that she
is a person with a disability. 29 C.F.R. � 1630.2(g). The Commission
finds that because grievant would have been able to perform the essential
functions of the position at issue herein with accommodation, she is a
qualified individual with a disability. 29 C.F.R. � 1630.2(m).
The only question remaining is whether the agency met its legal
obligation under the Rehabilitation Act to reasonably accommodate
grievant.<5> Grievant requested either a full-time or a part-time<6>
interpreter or job restructuring to facilitate her �hardship transfer�
to a Svce Rep, GS-8 position. Rather than provide the grievant with
her requested accommodations, the agency offered and grievant accepted,
out of necessity, a clerical, GS-5 position. Unless to do so would
impose an undue hardship, the agency was obligated to provide grievant a
full-time or part-time interpreter or to provide some other effective
reasonable accommodation. See Enforcement Guidance. The agency,
however, was not required by regulation to restructure the Svce
Rep job by reallocating an essential function, such as face-to-face
interviewing. See 29 C.F.R. app. � 1630.2(o). The agency stated that
the above-cited accommodations would impose an undue hardship because they
were economically unfeasible. However, the agency did not provide any
detailed data to support its contention that such an accommodation would
be an undue hardship, but instead made only general conclusory statements
about the associated economic hardship. Considering the overall size of
the agency, which during the period at issue was approximately 60,000
employees in over 1300 nationwide facilities; the fact that a profoundly
deaf claims representative in the agency's Washington, DC field office
had an interpreter for 35 � hours per week; and the intent of Congress
that the Federal government undertake measures to reasonably accommodate
that would involve more than a de minimis cost<7>; we find that the cost
of hiring either a full-time or part-time interpreter for grievant would
not be an undue hardship. Accordingly, the agency has failed to meet
its obligation to reasonably accommodate grievant's disability.
CONCLUSION
After a careful review of the record, including grievant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we REVERSE the arbitrator's finding of no
discrimination based on disability. The agency is instructed to comply
with the Order as set forth below.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Within thirty (30) calendar days of the date this decision
becomes final, the agency shall offer grievant a full-time, Service
Representative, GS-8 position or a substantially equivalent position at
its Cincinnati, Ohio facility. Grievant shall have thirty (30) calendar
days, from receipt of the agency's offer, to accept or reject.
(2) Regardless of whether grievant accepts or rejects the offered
position, the agency shall determine the appropriate amount of back pay
with interest and other benefits, e.g., health insurance, retirement,
and leave, due grievant, pursuant to 29 C.F.R. � 1614.501, less any
appropriate offsets, no later than sixty (60) calendar days after the date
this decision becomes final. The time period for purposes of back pay
shall be from the effective date of the denial of grievant's 1996 request
for a �hardship transfer� until the last day of the 30-day period during
which she can accept or reject the agency's offer or the effective date of
grievant's reinstatement to the offered position, whichever comes first.
The 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 the grievant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The grievant may petition for enforcement or clarification
of the amount in dispute. The petition for enforcement or clarification
must be filed with the Compliance Officer, at the address referenced in
the statement entitled �Implementation of the Commmission's Decision.�
(3) The issue of compensatory damages is REMANDED to the agency to,
within sixty (60) calendar days of the date the Commission's decision
becomes final, gather all evidence relevant to grievant's entitlement
to compensatory damages. The grievant shall cooperate in the agency's
efforts to compute the amount of compensatory damages due, and shall
provide all relevant information requested by the agency. The agency,
thereafter, shall issue a final action on the issue of compensatory
damages in accordance with 29 C.F.R. � 1614.110(b).
(4) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, �Posting Order.�
(5) The agency shall conduct EEO training for the responsible management
officials cited in the grievance at issue herein. Such training shall
include, but not be limited to, training on the agency's obligations
toward its disabled employees and applicants for employment.
(6) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled �Implementation of the Commission's
Decision.� The report shall include a copy of the letter offering
grievant a position as described in �Order� paragraph (1) as well as
supporting documentation of the agency's calculation of back pay and
other benefits due grievant.
POSTING ORDER (G0900)
The agency is ordered to post at its Cincinnati, Ohio 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 (H0900)
If grievant 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 (K0900)
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 grievant. If the agency does not comply with the Commission's order,
the grievant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The 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 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the 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 the grievant 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 (M0900)
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 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).
GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 13, 2001
__________________
Date
1Grievant worked in a unit consisting of deaf employees.
2Based on the record, a �hardship transfer� is movement to another
position due to difficulties experienced by the employee, typically in
his/her personal life.
3The agency stated that it hires full-time interpreters only to assist
a group of hearing impaired or deaf employees.
4Based on the record, interpreters are generally hired for a full-time or
part-time position at the GS-9 level or contracted with for approximately
fifty dollars per hour. A representative for the agency's Office of
Civil Rights and Equal Opportunity, which was consulted by the agency
about grievant's request for accommodation, stated that it is difficult
to find interpreters who are willing to accept full-time employment
because of the associated pay.
5�Reasonable accommodation� describes modifications to the manner under
which a position held is customarily performed that enables a qualified
individual with a disability to perform the essential functions of
his/her position. Enforcement Guidance: Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act (1999)
(Enforcement Guidance).
6Grievant stated that after considering her morning, lunch, and afternoon
breaks and time set aside for administrative work, she would only require
an interpreter for approximately 24 hours per week.
7Feris v. Environmental Protection Agency, EEOC Request No. 05950936
(July 19, 1996), affirming EEOC Appeal No. 01934828.