0120103111
01-12-2012
David J. Jorczak, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
David J. Jorczak,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103111
Agency No. 09-40085-01914
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the June 23, 2010 final Agency decision (FAD) concerning
his 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 the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant,
who is hearing impaired, worked as a Laborer in the Public Works
Department at the U.S. Naval Submarine Base in Groton, Connecticut.
On April 23, 2009,1 Complainant went to the Agency’s EEO Office without
an appointment. Complainant was accompanied by two co-workers (CW1 and
CW2) and his wife, all of whom are hearing-impaired. The EEO Technician,
the EEO Specialist, and the Reasonable Accommodation Coordinator (RAC)
were present during Complainant’s walk-in visit to the Office. CW1 did
most of the communicating with the EEO Office employees on Complainant’s
behalf because she was able to speak, sign, and interpret Complainant’s
sign language. No appointment was necessary to speak with someone in the
EEO Office; however, an appointment is usually made for an employee to
return later to conduct an intake session. Complainant was aware that
the EEO Office did not have a sign language interpreter present before
he went to the Office, yet he believed that the EEO Office was required
to have a full-time or part-time sign language interpreter on staff.
On August 10, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability (hearing
impairment) when on April 23, 2009, he was denied reasonable accommodation
for a walk-in visit to the EEO Office. Complainant contended that he
needed an interpreter because he was unable to communicate his concerns
on his own.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested that the Agency issue a FAD and, in accordance with
Complainant's request, the Agency issued a FAD pursuant to 29 C.F.R. §
1614.110(b) on June 23, 2010.
In its decision, the Agency noted that the EEO Technician stated that
usually an employee who walked into the EEO Office would speak to an
EEO Technician, and an intake appointment would be scheduled. The EEO
Specialist explained to CW1, who, in turn, relayed to Complainant,
that an appointment would have to be made in advance to arrange for an
interpreter to be present. RAC noted that CW1 indicated that she would
talk with the union representative about returning to the EEO Office,
and the union representative would complete Complainant’s paperwork
to begin the intake process. RAC affirmed that Complainant and CW1
appeared to understand what was being communicated.
RAC further denied Complainant’s allegation that the EEO Office was
required to have a full-time or part-time sign language interpreter
on staff. RAC stated that the written policy was for an interpreter
to be present any time there was a disciplinary action or a request for
service and that the Agency had a contract with a sign language service
to provide those services, but that the need for an interpreter had to
be communicated in advance because there was no permanent sign language
interpreter on staff. The EEO Technician asserted the Office informed
Complainant and CW1 that an interpreter could be arranged, but not that
same day.
Additionally, in response to Complainant’s arguments that CW1’s
presence to assist him was not an excuse for the Agency’s failure
to provide him an accommodation, RAC affirmed that the methods used
to communicate with Complainant and CW1 were acceptable under the
circumstances and that Complainant used CW1 as his spokesperson.
RAC maintained that CW1 indicated that she and Complainant would take
the paperwork, complete it, and return it to the Office.
The Agency concluded that the evidence established that when Complainant
went to the EEO Office without an appointment on April 23, 2009, CW1
was effectively acting as his sign language interpreter. That meeting
was essentially to document Complainant's visit to the EEO Office and to
ascertain the purpose for his visit, which CW1 communicated to the EEO
staff present. The evidence further established that a sign language
interpreter needed to be requested in advance and that Complainant could
have a sign language interpreter arranged for him when he returned for
his intake interview. Thus, the Agency concluded that Complainant
had provided insufficient evidence to support his claim that he was
not accommodated during his visit to the EEO Office. As a result, the
Agency determined that Complainant had not been denied an accommodation
in violation of the Rehabilitation Act.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the FAD mischaracterized his
mild-mannered nature as acceptance rather than frustration that no
accommodation was provided or made available. Complainant also argues
that CW1’s involvement did not negate the Agency’s obligation to
provide him reasonable accommodation. Accordingly, Complainant requests
that the Commission reverse the FAD.
STANDARD OF REVIEW
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
(EEO MD-110), at 9-15 (Nov. 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”).
ANALYSIS AND FINDINGS
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,
complainant must show that: (1) he is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) he 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 that Complainant
is a qualified individual with a disability under the Rehabilitation Act.
An employer should respond expeditiously to a request for reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, at question 10
(Oct. 17, 2002). If the employer and the individual with a disability
need to engage in an interactive process, this too should proceed as
quickly as possible. Id. Similarly, the employer should act promptly
to provide the reasonable accommodation. Id. Unnecessary delays can
result in a violation of the Rehabilitation Act. Id. In determining
whether there has been an unnecessary delay in responding to a request
for reasonable accommodation, relevant factors would include: (1)
the reason(s) for delay, (2) the length of the delay, (3) how much
the individual with a disability and the employer each contributed to
the delay, (4) what the employer was doing during the delay, and (5)
whether the required accommodation was simple or complex to provide.
Id. at n. 38.
The Commission has 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. 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)).
Based on a review of the entire record in this case, the Commission finds
that Complainant has not established that the Agency failed to provide
reasonable accommodation. Specifically, the record evidence reveals that
Complainant’s walk-in visit to the EEO Office was of his own volition
and was neither required nor controlled by the Agency. As such, the
Agency’s obligation was to provide Complainant an interpreter within
a reasonable period of time of his request. Complainant had previously
been informed that an interpreter could be provided for such matters if
he notified the Agency in advance. Additionally, Complainant conceded
that he knew before visiting the EEO Office that there was no full-time
interpreter available.
The Commission finds that there is no evidence in the record that the
Agency was unwilling to provide Complainant an interpreter within
a reasonable time. Particularly, the record indicates that during
Complainant’s visit, he and CW1 were informed that an interpreter could
be provided for his next visit. Complainant has presented no evidence
contradicting the Agency’s willingness to provide an interpreter.
Thus, there is no evidence suggesting that Complainant was deprived of
a benefit or privilege of his employment. Under these circumstances,
the Commission finds that Complainant has not demonstrated that he was
denied reasonable accommodation.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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 (Nov. 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 (S0610)
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. 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
January 12, 2012
Date
1 Complainant claimed that the incident occurred on April 23, 2009,
while Agency witnesses stated that the date was actually April 21, 2009.
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0120103111
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103111