0420100013___0120090239
06-04-2010
Donley B. Bratsch, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Donley B. Bratsch,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Petition No. 0420100013
0120090239 1
Appeal No. 01A40695
Agency No. 1H-326-0020-02
DECISION ON A PETITION FOR ENFORCEMENT
On October 4, 2008, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Donley B. Bratsch v. United States
Postal Service, Appeal No. 01A40695 (September 15, 2006). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.
ISSUE PRESENTED
Whether the agency failed to comply with our order in Donley Bratsch
v. United States Postal Service, EEOC Appeal No. 01A40695 (September 15,
2006).
BACKGROUND
In the interest of clarity, we first set forth background information
related to the instant matter. In May 1992, the parties entered into
a settlement agreement providing that:
The Pensacola Post Office will not show videos at the GMF without the aid
of closed-caption, a written narrative or certified interpreter. A video
may be shown if one of these three options is available. If none of
these option[s] are available..., than [sic] the video will not be shown.
The record also reveals that during the relevant time, petitioner was
employed as a Flat Sorter Machine Operator at the agency's Pensacola,
Florida facility. On December 3, 2002, petitioner filed a formal
complaint in which he alleged that he was discriminated against on
the basis of disability (hearing impairment) when, on April 25, 2001,
August 15, 2001, October 31, 2001, January 15, 2002, and April 4, 2002,
the agency held meetings without providing him with an interpreter.
On June 29, 1993, petitioner filed a formal complaint alleging that
the agency breached the 1992 settlement agreement when it failed to
provide closed captioning or sign language interpreting services for a
training film. Further, on August 24, 1993, petitioner filed another EEO
complaint in which he alleged that the agency discriminated against him
on the basis of his disability (hearing impaired) when, on July 6, 1993,
management held a safety talk for employees. The petitioner maintained
that although he was given a written transcript of the talk, management
failed to provide an interpreter and he was unable to fully participate,
i.e., he could not hear the supervisor's comments or any questions and
answers. The agency issued a final decision which dismissed petitioner's
breach claim and found no discrimination as to his second claim.
In Bratsch v. United States Postal Service, EEOC Appeal No. 01950296
(April 18, 1996), the Commission found that the agency breached the
settlement agreement and denied petitioner a reasonable accommodation
when it provided him with a written transcript of the safety talk in lieu
of an interpreter. The Commission ordered the agency to "eliminate the
discriminatory practice, i.e., showing films without closed captioning or
an interpreter and holding safety/service talks without an interpreter
when a hearing impaired employee is in attendance, taking all necessary
steps to do so." Id.
On December 3, 2002, petitioner filed another complaint in which he
alleged that the agency again violated the Rehabilitation Act when an
interpreter was not provided to him during safety talks. Specifically,
the agency provided "emergency" safety talks to employees regarding the
suspected presence of anthrax in agency facilities, as well as discussions
surrounding the events of September 11, 2001.
In its final decision, the agency found that it did not fail to
provide petitioner with a reasonable accommodation. The final
decision noted that a sign language interpreter was made available to
petitioner one time per week in order to allow him to participate in
weekly service/safety talks. However, the decision further stated that
management was occasionally required to give safety talks "immediately,"
which precluded the agency from obtaining a sign language interpreter. The
decision further noted that petitioner worked on Tour I, which made it
difficult to obtain interpreting services for that time.
Petitioner appealed the final decision to the Commission, and in a
decision dated September 15, 2006, the Commission found that the agency
failed to provide petitioner with a reasonable accommodation. Bratsch
v. United States Postal Service, EEOC Appeal No. 01A40695. The Commission
determined that the agency's actions denied petitioner information
that was given to other employees, and "to deny petitioner information
regarding possible risks to his health during such turbulent times,
which, for other hearing employees was urgently provided, is inexcusable."
We further found that the agency did not act in good faith because it was
already put on notice by the Commission in Bratsch v. United States Postal
Service, EEOC Appeal No. 01950296, that merely providing petitioner with
a transcript of safety talks where it was unable to provide interpreting
services was not an effective accommodation. The decision further found
that the agency did not provide an explanation as to why employees such
as petitioner, who work Tour I, should be required to wait a week before
hearing pertinent, and often "emergency" safety information.
As a remedy, the Commission ordered the agency to: 1) provide training
to all responsible managers and supervisors at the Pensacola Processing
and Distribution Center regarding the agency's obligations under the
Rehabilitation Act; 2) conduct a supplemental investigation regarding
petitioner's entitlement to compensatory damages; 3) consider taking
disciplinary action against the responsible management officials; and,
4) pay petitioner's attorney's fees and cost. Additionally, in provision
1 of the order, the Commission ordered the agency to do the following:
The agency will immediately ensure that petitioner is provided with a
qualified sign language interpreter when required during his employment,
including at a minimum 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 the employee's employment career.
In an informal counseling statement dated August 5, 2008, petitioner
alleged that on August 4, 2008, all other automation clerks, except
petitioner, were called to the Automation Supervisor's desk for
a short talk. Petitioner further alleged that he tried to get the
supervisor's attention, and the supervisor wrote notes to him, but "it
was quite obvious that the talk was completed with my co-workers because
they all disbursed." Petitioner maintained that he was excluded from
participation in this talk, which violated the Commission order in EEOC
Appeal No. 01A40695.
In a final decision dated September 4, 2008, the agency characterized
petitioner's claim as alleging a breach of the May 5, 1992 settlement
agreement and found that it did not breach the agreement. The decision
stated that the Automation Supervisor maintained that on August 4,
2008, he was instructed to share and post a new break schedule for the
operation. The decision stated that the supervisor gave instructions
to the other employees for 15 to 30 minutes, knew petitioner was behind
him, and immediately shared the instructions with petitioner after the
other clerks dispersed. The decision further stated that the supervisor
maintained that he had no knowledge of the settlement agreement.
In petitioning for enforcement, petitioner reiterates his claim that the
Automation Supervisor's actions violated the Commission's order in EEOC
Appeal No. 01A40695. The agency did not submit a statement in response
to the petition.
ANALYSIS AND FINDINGS
Upon review of this matter, we first find that the agency's final decision
mischaracterized petitioner's claim as alleging breach of the May 5, 1992
settlement agreement. We note that in his August 5, 2008 notice and on
appeal, petitioner clearly alleges that the agency's actions violated our
orders in EEOC Appeal No. 01A40695, not the 1992 settlement agreement.
Even in its final decision, the agency cites the provisions of our order
in EEOC Appeal No. 01A40695 as the basis on which petitioner alleged
non-compliance. In essence, petitioner is petitioning the Commission to
enforce our order in EEOC Appeal No. 01A40695. Petitioner is advised
that, instead of raising this matter through informal EEO counseling
at the agency, he should have directly petitioned the Commission for
enforcement of the order pursuant to 29 C.F.R. � 1614.503(a).
Nevertheless, in the interest of administrative economy, we shall
proceed as indicated above. In this case, the agency acknowledged that,
on or about August 4, 2008, petitioner's supervisor held a 15-30 minute
discussion with petitioner's coworkers that excluded petitioner and that
he separately discussed the information disseminated to the coworkers
with petitioner after the coworkers dispersed. Petitioner further stated
that he tried to get the supervisor's attention during the discussion,
the supervisor wrote notes to him, but "it was quite obvious that the talk
was completed with my co-workers because they all disbursed." The agency
has not shown that extenuating circumstances existed that would in any
way justify the holding a meeting without providing an interpreter for
petitioner so that he could participate in the discussion concurrently
with his coworkers. Thus, we find that the agency violated our order
in EEOC Appeal No. 01A40695.
CONCLUSION
Accordingly, the Commission finds the agency has not fully complied
with our previous Order set forth in EEOC Appeal No. 01A40695 and must
take additional steps to be in full compliance. The agency is therefore
directed to comply with the Order herein.
ORDER
The agency is hereby ORDERED to take the following actions:
1. The agency shall immediately ensure that petitioner is provided with
a qualified sign language interpreter, including at a minimum, 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 the employee's employment
career.
2. With thirty (30) calendar days, the agency shall provide the Commission
with a detailed action plan explaining how it will henceforth comply
with provision (1) of this order. See 29 C.F.R. � 1630.2(o)(1)(iii).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 petitioner.
If the agency does not comply with the Commission's order, the petitioner
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The petitioner 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 petitioner
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 petitioner 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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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
_____6/4/10______________
Date
1 The Commission administratively closes the record listed under docket
number 0120090239 because it was incorrectly docketed. Although the
Commission is closing 0120090239, we are addressing petitioner's concerns
under the new designation, EEOC Petition No. 0420100013. All future
correspondence regarding this matter should reference EEOC Petition
No. 0420100013.
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2
04201000013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0420100013
0120090239