Coralee H.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Feb 15, 2019

EEOC Appeal No. 0120172277 (E.E.O.C. Feb. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Coralee H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120172277

Agency No. 1K221005216

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 15, 2017 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 Full-time General
Clerk at the Agency’s Northern Virginia Processing and Distribution Center in Merrifield,
Virginia. Complainant stated that she has been deaf since birth. Complainant stated that prior to
the relevant period, the Agency’s District Reasonable Accommodation Committee granted her
reasonable accommodation in the form of videophone, video remote interpreting (VRI), and a live
interpreter.

Complainant alleged numerous incidents of discriminatory conduct occurred beginning on June
28, 2016. First, Complainant claimed that the Manager, Distribution Operations (M1) instructed
her not to enter M1’s office when she was not in the office. Complainant alleged that M1 had her

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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personal belongings and confidential information in the office which is why Complainant could
not go in the office without M1 present. Complainant disagreed with this reasoning because other
employees were allowed in the office.

In addition, Complainant claimed that her request for an interpreter for the weekly safety and
service talk was denied on that day. Further, Complainant alleged that she was not given any
handouts regarding the talk.

Additionally, Complainant claimed that M1 eliminated several of her duties, including distributing
paychecks, supervisor of the weekly schedule, and typing higher-level assignments. Complainant
alleged that these duties had been performed by the General Clerk for many years, but M1 began
performing these assignments herself. Complainant asserted that M1 told her that the reasons for
the elimination of the work were because Complainant was not at work to perform the duties, and
that she did not want Complainant to see the supervisor leave book and higher-level assignments.
Further, Complainant claimed that M1 told her that paychecks needed to be kept in M1’s office
and Complainant was not allowed to go in there. Complainant disagreed because she believed
other employees could perform these tasks.

Complainant alleged that she made several verbal requests and an email request to speak to the
Manager, Human Resources (HRM) to address some issues. Complainant claimed that HRM
acknowledged her request and simply provided a response without a meeting. Similarly,
Complainant alleged that that the Disability Coordinator(DC) failed to meet with her for the annual
review of her communication accommodation needs. Complainant stated that she did not make a
request to meet with him, but that it was required for him to do so under Agency guidelines.

Complainant claimed that M1 assigned her to perform work that management never used. More
specifically, Complainant alleged that she was assigned the Safety/Service signup sheet and the
Overtime Desired List sheet. Complainant asserted that these sheets were always on M1’s desk
and had never been used. Further, Complainant claimed that management assigned overtime by
rotation without using the sheet.

On September 19, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of disability (deafness) when:

1. On June 28, 2016, and ongoing, she has been instructed not to enter the Manager,
Distribution Operations’ (M1) office;

2. On June 28, 2016, her request for an interpreter was denied;

3. On June 28, 2016, her job assignments of distributing pay checks, supervising the
weekly schedules, and higher level typing assignments were eliminated;

4. Since June 28, 2016, she has failed to receive a response to her request to speak with
the Manager, Human Resources (HRM);
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5. Since June 28, 2016, she has not been scheduled to meet with the Disability
Coordinator (DC); and

6. Since June 28, 2016, she has been required to perform an assignment that management
never uses.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

In its FAD, the Agency determined that with respect to claim (2), Complainant did not establish a
failure to accommodate claim because the record was devoid of evidence that Complainant was
denied an interpreter on June 28, 2016. As for disability discrimination, with respect to all claims,
the Agency found that Complainant did not establish that the circumstances surrounding the
adverse actions gave rise to an inference of adverse treatment. Specifically, the Agency stated that
there was no showing of disparate treatment because Complainant failed to provide adequate
comparators and therefore could not show evidence that employees outside of her protected class
were treated more favorably. The Agency further determined that management provided
legitimate, nondiscriminatory reasons for its actions. As for pretext, the Agency found that
Complainant failed to refute management’s testimony regarding each claim. Accordingly, the
Agency found that Complainant had not been subjected to discrimination as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that with respect to claim (1), M1’s explanation was
contradictory and therefore pretextual. Specifically, Complainant claims that because M1
indicated that other managers were missing money, her statement that no other management
officials were involved in the claim was contradictory. Complainant further contends that M1
should have known that Complainant did not have an interpreter at their June 28, 2016 meeting.
She alleges that management’s acknowledgement in September 2016, that there was a plan to
conduct service talks twice per week in a special functions room with accessible VRI is indicative
of the fact that Complainant did not receive an interpreter on June 28, 2016. Complainant
maintains that management officials made ongoing contradictory statements regarding the denial.
Complainant contends that M1 provided three different statements regarding Complainant’s claim
that she was removed from paycheck distribution duties and M1’s statements should not be
considered because they are misleading. Complainant alleges that her claims should be considered
as a failure to accommodate and maintains that management officials were untruthful in their
responses.

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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. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “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”).

Disparate Treatment

Where, as here, there is no direct evidence of discrimination, the adjudication of a complaint of
discrimination alleging disparate treatment follows a three-step evidentiary analysis enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the burden is on the complainant
to establish a prima facie case. Second, the agency has the burden of production to articulate a
legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 252 (1981). Third, in order to prevail once the agency has articulated a legitimate,
nondiscriminatory reason for its actions, the complainant must establish by a preponderance of the
evidence that the agency’s stated reason for its actions was pretext for discrimination. See Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).

Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis to the ultimate
issue of whether Complainant has shown by a preponderance of the evidence that the agency’s
explanation is pretext for discrimination. Reeves, 530 U.S. at 143; St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Here, we find that the Agency articulated legitimate, nondiscriminatory reasons for the disputed
actions. Regarding claim (1), M1 acknowledged that she instructed Complainant, along with other
employees, not to enter her office without approval. ROI, at 144. M1 noted that in addressing
Complainant’s concerns following her complaint, M1 explained to Complainant that her
instruction was due to a security issue. Id. Likewise, M1 stressed that she kept personal property
and classified information in her office, but she ultimately gave the instruction because there were
allegations of missing money and property. Id. at 145. M1 affirmed that when she is not in her
office, any access to other employees is provided verbally or in advance. Id. at 167.

As to claim (3), M1 averred that she eliminated paycheck distribution from Complainant’s
responsibilities because an employee received a paycheck that did not belong to him. ROI, at 149.
Paychecks were subsequently stored in a manager’s office. Id. M1 added that she eliminated
Complainant’s tasks involving higher-level forms due to Complainant’s absenteeism. Id. at 150,
169, 170. She noted that during Complainant’s absences, she relied on assistance from three other
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clerks to fulfill assignments. Id. at 150. According to M1, Complainant was given back many of
those duties following her improved attendance. Id. at 160.

Regarding claim (4), the Human Resources Manager (HRM) affirmed that she did not receive a
request to meet with Complainant. ROI, at 185. Likewise, with respect to claim (5), HRM attested
that the District Disability Coordinator (DC) did not have a meeting request. Id. at 186. DC stated
that he first learned that Complainant wanted to meet with him and was unable to do so when he
was contacted to submit an affidavit. Id. at 196. DC acknowledged that he is required to meet
with individuals who have been granted reasonable accommodations to determine the
effectiveness of the accommodation and whether improvements are needed. Id. However, he did
not recall Complainant requesting a meeting since June 2016. Id. DC averred that he spoke with
Complainant about her availability for an annual meeting, and Complainant informed him that
Thursdays worked best, but she was not available. Id. at 199, 206. DC stated that he followed up
with Complainant via email and described repeated attempts to explain to Complainant that she
could meet with him. Id.

Regarding claim (6), M1 affirmed that Complainant was required to prepare the overtime list,
which supervisors refer to when calling overtime. ROI, at 158. M1 explained that in most
instances, all the employees on the list are called and supervisors prefer to call overtime themselves
sometimes. Id. M1 further testified that the purpose of the overtime list is to assure that overtime
is offered in rotation order. Id.

As Complainant chose not to request a hearing before an EEOC AJ, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant's protected classes were a factor in
any of the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons
and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this
burden. As a result, the Commission finds that Complainant has not established that she was
subjected to discrimination as alleged.

Denial of Reasonable Accommodation—Claim (2)

Complainant alleged that the Agency failed to provide her with an interpreter as an accommodation
for the weekly safety and service talk on June 28, 2016. The Agency is required to provide a
reasonable accommodation for the known physical and mental limitations of a qualified individual
with a disability, absent undue hardship. 29 C.F.R. §1630.2(o); 29 C.F.R. § 1630.2(p); EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). It is
undisputed that Complainant is a qualified individual with a disability under the Rehabilitation
Act.

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An employer must provide reasonable accommodation to enable an employee with a disability to
have equal access to information communicated in the workplace. EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act
(March 1, 1999) at question 14. We have previously held that “for a severely hearing impaired
employee who can sign, reasonable accommodation, at a minimum, requires providing an
interpreter for safety talks, discussions on work procedures, policies or assignments, and for every
disciplinary action so that the employee can understand what is occurring at any and every crucial
time in his employment career, whether or not he asks for an interpreter.” Ferris v. Evtl. Prot.
Agency, EEOC Appeal No. 01934828 (Aug. 10, 1995); see Funk v. U.S. Postal Serv., EEOC
Appeal No. 01984772 (July 27, 2001); Thomas v. U.S. Postal Serv., EEOC Appeal No. 01982321
(Feb. 2, 2001). Moreover, we have found the Rehabilitation Act requires than 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. U.S. Postal Serv., EEOC Request No. 05960270 (Oct. 16, 1998).

M1 stated that she was not aware that Complainant was denied an interpreter on June 28, 2016.
ROI, at 147. However, M1 explained that when or if Complainant needs an interpreter, she notifies
her supervisor and Complainant’s supervisor schedules an interpreter or VRI. ROI, at 148.
Complainant’s supervisor (S1) during the relevant period, stated that interpreter requests required
at least 24 hours’ advance notice. Id. at 175. However, he denied knowledge of any dates in which
Complainant was denied an interpreter and asserted that VRI was used for service and safety talks.
Id. at 175, 176, 179. Nonetheless, S1 averred that he met with Complainant in June 2016, “in an
effort not to bring all operations to a halt for service talks” and he agreed to provide Complainant
handouts of the service and safety talks. Id. at 13. Complainant asserts on appeal that she was not
provided an interpreter for this meeting. After meeting with Complainant, management
established a plan to conduct service talks twice per week in the special functions room where VRI
is accessible. Complainant contends that this meeting was not backed by action.

As discussed above, management officials denied that Complainant was denied an interpreter on
any date during the relevant period. However, S1 stated that he provided handouts in lieu of an
interpreter at some point in June 2016, which is consistent with Complainant’s allegations.
Although M1 and DC reported that they used other methods to communicate with Complainant,
including lipreading; handwritten materials; and texting, an agency is not excused from its
obligation to provide a deaf employee with an interpreter because the employee can lipread, or
otherwise understand simple, written instructions. Jackson v. U.S. Postal Serv., EEOC Request
No. 05880750 (Apr. 18, 1989). Therefore, while Complainant did not request the presence of an
interpreter at the safety talk meeting, Agency management was aware that she needed and was
entitled to such a reasonable accommodation. 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 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).
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision with respect to claims (1),
(3), (4), (5), and (6) and REVERSE and REMAND the Agency’s final decision with respect to
claim (2).

ORDER

The Agency is ordered to take the following remedial action:

1. The Agency will immediately ensure that Complainant is provided with a qualified sign
language interpreter when required during her employment, including at a minimum for
safety talks, discussions on work procedures, policies or assignments, for performance
evaluations and for every pre-disciplinary and disciplinary action so that the employee can
understand what is occurring at any and every crucial time in the employee’s career.

2. Within ninety (90) calendar days from the date this decision is issued, the Agency shall
conduct a supplemental investigation of Complainant's entitlement to compensatory
damages. The Agency is directed to inform Complainant about the legal standards
associated with providing compensatory damages and give Complainant examples of the
types of evidence used to support a claim for compensatory damages. Complainant shall
be given 30 calendar days from the date she receives the Agency's notice to provide all
supporting evidence of her claim for compensatory damages. Within thirty (30) calendar
days of the date the Agency receives Complainant's submission, the Agency shall issue a
new final decision determining Complainant's entitlement to compensatory damages,
together with appropriate appeal rights.

3. Within ninety (90) calendar days from the date this decision is issued, the Agency shall
provide eight (8) hours of in-person or interactive training to all managers and supervisors
at its Northern Virginia Processing and Distribution Center regarding the Agency’s
obligation to provide reasonable accommodation under the Rehabilitation Act to qualified
individuals with disabilities, and specifically with respect to the requirements for hearing-
impaired employees as reviewed in this decision.

4. Within sixty (60) calendar days from the date this decision is issued, the Agency shall
consider taking disciplinary action against M1 and S1. The Agency shall report its
decision. If the Agency decides to take disciplinary action, it shall identify the action taken.
If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline.

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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 (G0617)

The Agency is ordered to post at its Northern Virginia Processing and Distribution Center in
Merrifield, Virginia 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 was issued, 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 as directed in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 15, 2019
Date