0120122130
03-11-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120122130
Hearing No. 410-2010-00255X
Agency No. 4H-300-0043-10
DECISION
On April 6, 2012, Complainant filed an appeal from the Agency's March 5, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency's Centerville facility in Snellville, Georgia. On January 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (deaf) and in reprisal for prior EEO activity when: (1) by letter dated November 16, 2009, management put her in emergency placement off-duty status and subsequently issued her a Notice of Removal for Improper Conduct/Delay of Mail on November 25, 2009; and (2) management failed to provide her with a reasonable accommodation when it did not provide her with a sign language interpreter for meetings and safety talks.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant reiterates her contention that the Agency subjected her to unlawful discrimination and denied her a reasonable accommodation. The Agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from 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. (November 9, 1999) (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 "review 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").
With respect to claim (1), to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Here, we find that assuming, arguendo, Complainant established a prima facie case of disability and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for putting her in emergency placement off-duty status and later issuing her a notice of removal. The record shows that on November 12, 2009, Complainant failed to complete the delivery of her route and returned to her facility with mail for approximately 49 residences, including both first-class mail and parcels. The record further shows that the following day, Complainant confirmed to the Manager, Customer Service (M1), that she did not inform any management officials that she had failed to deliver the mail. As such, M1 placed her in off-duty status without pay. An investigative interview was conducted on November 20, 2009, with a sign language interpreter present, wherein Complainant stated that she returned to the facility with undelivered mail because she had been late in starting her route and when it got dark the light in her vehicle was not working so she could not see the addresses." Complainant contends that she was not aware of proper procedures for reporting undelivered mail, or that failing to deliver the mail could result in discipline, because she was not provided with an interpreter during safety talks.
The record shows, however, that although Complainant was not provided an interpreter during safety talks, she was provided with an interpreter during her initial training period, and that she signed a document during her training period that indicated she understood the severity of the offense of knowingly or willfully obstructing or delaying delivery of mail. Additionally, M1 states, that when he checked Complainant's vehicle, the light was working and Complainant had not put in a service request to have the light repaired. Further, the Postmaster (PM) states that Complainant returned several parcels that had been scanned as delivered, which was a falsification of information, and that Complainant placed the undelivered mail out of obvious sight which the PM stated led her to believe Complainant was deliberately hiding the mail and showed that Complainant knew she had violated policy.
Management issued Complainant a Notice of Removal, dated November 25, 2009, for improper conduct/delay of mail, stating that "due to the egregious nature of the infractions, a lesser penalty would not be in the best interest" of the Agency, and that Complainant's actions undermined "the public's confidence." We find that Complainant has not shown that the Agency's articulated reasons are pretextual, or that her placement in emergency off-duty status and the subsequent issuance of a notice of removal were motivated by discriminatory or retaliatory animus.2
With respect to claim (2), we note that the Agency concedes that Complainant is a qualified individual with a disability. Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Oct. 17, 2002) (Reasonable Accommodation Guidance). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish disability discrimination, a complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. It is undisputed in this case that Complainant is a qualified individual with a disability under the Rehabilitation Act.
Here, the record shows that although Complainant was provided with an interpreter during her initial training period, the Agency acknowledges that it did not provide Complainant with an interpreter for standup meetings or safety talks at any point after that initial training period. Additionally, the PM states that she is unaware of the requirements regarding sign language interpreters and did not believe it was necessary to provide Complainant with an interpreter unless one was requested. The PM also stated that even during a safety talk regarding massive flooding in the local area, which took place on September 21, 2009, Complainant was not provided with an interpreter despite the content of the talk addressing an immediate potential threat to employee safety. The PM states that she believed an interpreter was not necessary because Complainant did not request one and she believed Complainant understood the content of the talk. We do not agree.
The Agency contends that it did not provide Complainant with an interpreter for any safety talks or stand-up meetings because she is able to read lips and did not specifically request that an interpreter be provided. The Commission has held, however, 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 or her employment career, whether or not he/she asks for an interpreter. See Feris v. Envtl. Prot. Agency, EEOC Appeal No. 01934828 (Aug. 10, 1995), request for reconsideration denied, EEOC Request No. 05950936 (July 19, 1996) (citing Bradley v. U.S. Postal Serv., EEOC Request No. 05920167 (Mar. 26, 1992); Jackson v. U.S. Postal Serv., EEOC Request No. 05880750 (Apr. 18, 1989)). We have held that an Agency's obligation to accommodate a deaf employee is not diminished where the employee has the ability to read lips. See Yost v. U.S. Postal Serv., EEOC Appeal No. 01A51547 (June 13, 2006) (citing Wait v. Soc. Sec. Admin., EEOC Appeal No. 01A11629 (October 2, 2003)). Moreover, we have found the Rehabilitation Act to require that an agency reasonably accommodate hearing impaired employees by providing effective interpreter services during work-related activities where hearing impaired employees are expected to be present. See Ortiz v. United States Postal Serv., EEOC Request No. 05960270 (Oct 16, 1998). Therefore, it matters not that complainant, who can read lips and sign, did not request that an interpreter be available - she was still entitled to such a reasonable accommodation. See Yost, EEOC Appeal No. 01A51547. As such, we find that the Agency failed to provide Complainant with a reasonable accommodation in violation of the Rehabilitation Act.
We note the Agency does not claim that providing Complainant an interpreter at meetings and safety-talks would constitute an undue hardship. Moreover, we find no evidence in the record to support a finding that providing Complainant interpreter services would have been unduly costly or that it would have fundamentally altered the nature of the Agency's operation. See 29 C.F.R. � 1630.2(p).
CONCLUSION
Accordingly, the Agency final decision finding no discrimination with respect to claim (1) is AFFIRMED. The Agency's finding of no discrimination with respect to claim (2) is REVERSED and we REMAND the matter for compliance with the ORDER herein.
ORDER
The Agency is ordered to take the following remedial actions:
1) Immediately ensure that Complainant is provided a qualified sign language interpreter when necessary to ensure that she has access to information communicated in the workplace equal to that of nondisabled employees, such as during stand-up talks, safety-talks, mandatory group meetings, staff meetings regarding workplace procedures, policies or assignments, and for every disciplinary action.
2) Within 15 calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within 45 calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation and issue a decision on the claim for compensatory damages within 45 calendar days of the date the Agency receives Complainant's claim for compensatory damages.
3) Within 180 days after the date this decision becomes final, the Agency shall provide eight hours of EEO training to all management officials at the Centerville facility, regarding their obligations under the Rehabilitation Act.
4) Within 90 days after the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Agency shall report its decision to the Compliance Officer referenced herein. 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 for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure dates.
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 Centerville in Snellville, Georgia 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)), 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 11, 2015
__________________
Date
1 Even though the Agency failed to include this reasonable accommodation claim in its list of claims in its final decision, a review of the record shows that this claim was raised before the EEO counselor, was included in the formal complaint, and was also raised by Complainant in response to the Agency's "Acceptance for Investigation" letter. Further, the Agency included an analysis of Complainant's reasonable accommodation claim in the body of the decision.
2 The record shows that a pre-arbitration settlement agreement was signed on February 4, 2011, which returned Complainant to duty, without back pay.
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0120122130
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122130