05960270
10-16-1998
Joseph A. Ortiz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph A. Ortiz v. United States Postal Service
05960270
October 16, 1998
Joseph A. Ortiz, )
Appellant, )
)
v. ) Request No. 05960270
) Appeal Nos. 01950773
William J. Henderson, ) 01942886
Postmaster General, ) Agency Nos. 1-B-1395-93
United States Postal Service, ) 1-B-1540-93
Agency. ) Hearing No. 160-94-8110X
______________________________ ) (on 1-B-1395-93 only)
GRANTING OF REQUEST TO RECONSIDER
On January 29, 1996, Joseph A. Ortiz, (hereinafter referred to as the
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Joseph A. Ortiz
v. Marvin T. Runyon, Jr., Postmaster General, United States Postal
Service, (N.E./N.Y.), EEOC Appeal Nos. 01950773 and 01942886 (December
11, 1995) received on January 4, 1996. EEOC Regulations provide that the
Commissioners may, in their discretion, reconsider any previous Commission
decision. 29 C.F.R. �1614.407(a). The party requesting reconsideration
must submit written argument or evidence that tends to establish one
or more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is GRANTED.
ISSUE PRESENTED
(1) Whether the previous decision properly concurred with the decision
of the Administrative Judge (AJ) that appellant was not aggrieved with
respect to his allegation that the agency discriminated against him on
the basis of physical disability by failing to provide an interpreter as
an accommodation to his disability (deafness) at meetings, most recently
on March 23, 1993 when a safety talk was conducted without an interpreter
for the hearing impaired.
(2) Whether the previous decision properly affirmed the agency's decision
that it did not discriminate against appellant on the basis of physical
disability by failing to provide an interpreter as an accommodation to
his disability, most recently at a Memorial Day Service Talk on May 28,
1993.
BACKGROUND
Complaint No. 1
The first of the two complaints (EEOC Appeal No. 01950773, agency
no. 1-B-1395-93; hereinafter, Complaint 1), was filed on May 14, 1993 and
charged the agency with failure to provide reasonable accommodations or
special assistance to deaf employees on "numerous occasions." Appellant
identified a safety talk on March 23, 1993, stating that he received
no benefit from the safety talk, and as corrective action requested
that a certified interpreter be available, with no exceptions,
for all important postal sponsored events and meetings. The agency
initially defined the issue as the March 23 safety talk. In response to
appellant's disagreement, the issue was redefined as failure to provide an
interpreter as an accommodation at meetings, most recently on March 23,
1993. Following the agency's investigation of the complaint, appellant
requested a hearing before an EEOC Administrative Judge (AJ). The
AJ issued a decision without a hearing recommending a finding of no
discrimination, which the agency adopted as its final agency decision
(FAD) on October 12, 1994.
The AJ found that appellant was a qualified individual with a
disability. With respect to appellant's allegation that the agency had a
duty to provide an interpreter at the March 23, 1993 safety talk, the AJ
viewed the critical threshold issue to be appellant's nonattendance at
the talk, and made a specific finding on the issue. The AJ reasoned that
appellant voluntarily elected not to attend, and to attend a personal
function on his own time instead. The AJ also considered record evidence
regarding the number of Tour 3 employees and the agency's reason for
refusing to reschedule the talk. The AJ noted that because of the number
of employees on Tour 3, approximately 321, there was no agency history of
postponing employee safety meetings because one employee would be absent
from work. Based on these facts, and noting also that appellant did
not dispute the agency's reason for refusing to reschedule the meeting,
the AJ found that appellant failed to prove that the agency's refusal
to postpone the safety talk was discriminatory.
The AJ viewed the question of whether or not an interpreter was required
at the safety meeting to be a merely abstract question and not specific
to appellant. The AJ concluded that since appellant did not attend the
safety talk, he was not an "aggrieved" person within the meaning of 29
C.F.R. �1614.105(a), and failed to state a claim. The AJ specifically
noted that appellant had identified six other instances of alleged failure
to accommodate, but addressed them only by stating that all were formally
settled in the labor-management negotiation context and that there was
no record that appellant filed an EEO complaint on them.
Complaint No. 2
The second complaint (EEOC Appeal No. 01942886, agency no. I-B1450-93;
hereinafter, Complaint 2), filed on August 10, 1993, also charged
the agency with failure to provide an interpreter as a reasonable
accommodation. Appellant alleged that the agency failed to provide an
interpreter for a Memorial Day service talk on May 28, 1993, and also
alleged that an interpreter was not provided on numerous occasions. The
agency ultimately defined the issue as failure to provide an interpreter,
most recently at a Memorial Day Service Talk on May 28, 1993. Following
investigation of the complaint, the agency in accordance with EEOC
regulations provided appellant with a copy of the investigative file
and a notice of his right to request a hearing before an EEOC AJ. The
FAD on Complaint 2 states that appellant requested a decision without
a hearing. A FAD was issued on March 7, 1994 finding no discrimination.
The agency, in its FAD, relied on the Plant Manager's investigative
affidavit indicating that nonveteran employees who were on-the-clock, such
as appellant, were not intended to attend the Memorial Day service. In
addition, the agency noted that an interpreter was provided for the
subsequent 1993 Veterans Day ceremony. Therefore, the agency found no
evidence of an intent to discriminate against appellant because of his
disability. The FAD made no determination regarding whether or not the
agency had a duty to provide an interpreter at the service, other than
to state that the interpreter would have interpreted had she been at
work that day.
On appeal, appellant argued that later, similar incidents showed that
the agency continued in its failure to provide an interpreter. Appellant
submitted several letters and statements from Rochester employees dated
in September of 1992, and October and November of 1993, corroborating his
assertions that the agency had continued to fail to provide interpreters
at safety and work related meetings, that the coworker interpreter
frequently was unavailable to interpret at such meetings, and that deaf
workers were being separated and excluded from safety meetings conducted
for hearing employees.
The Previous Decision
The previous decision consolidated Complaint Nos. 1 and 2 for
decision. With respect to Complaint 1, the previous decision found that
the AJ was correct in ruling that appellant was not aggrieved and in
the reasoning which led to this ruling. Therefore, it did not reach an
inquiry into the agency's admitted failure to provide an interpreter for
the safety talk on March 23, 1993. The decision noted that with respect
to Complaint 2, appellant alleged that the agency failed to provide an
interpreter at the May 28, 1993 Memorial Day service, as well as on
"numerous occasions." It found that while the agency's FAD did not
address the allegation regarding "numerous occasions," the claim was
not an adequate allegation requiring agency investigation or further
discussion. The decision noted that the AJ had determined the same
allegations in Complaint No. 1 had already been resolved.
Therefore, the decision only addressed the narrow question of whether
appellant's attendance at the Memorial Day service was the type of
situation triggering the agency's duty to provide him with reasonable
accommodation. On this point, the previous decision found that the agency
did not have to provide such services in this instance since appellant
attended the ceremony only by mistake. The decision found that the
agency did not contemplate the provision of such services since only
veterans were intended to be permitted to leave the work room floor
for the ceremony and none of the veterans at the subject facility had
hearing impairments.
Arguments on Reconsideration
On reconsideration, appellant submits documentation of previously
enumerated 1992 and 1993 incidents in which the agency allegedly failed
to provide reasonable accommodation through an interpreter.<1> Appellant
asserts that these incidents indicate that the Rochester facility has
failed to provide this reasonable accommodation continually in the
past. He indicates that he has been trying to show the Commission all
of the incidents where agency management said that they would provide
an interpreter when necessary, but did not do so. He claims all of
the incidents caused him to become more frustrated and forced him to
transfer to a different postal facility. He asserts that the agency's
inaction caused him mental anguish. With his request for reconsideration,
appellant also submits, inter alia, letters from three of his hearing
impaired former coworkers<2> to further corroborate his allegations that
the agency has repeatedly failed to provide interpretive services for
safety and other work related meetings at the Rochester facility, and
that when such services were provided, they were given by a coworker
interpreter who was not certified or well trained in American Sign
Language (ASL) and was frequently unavailable when needed.
In response, the agency argues that it has not been provided with copies
of appellant's enclosures and that appellant's complaint is now moot
due to his transfer to another facility.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration meets the regulatory criteria
of 29 C.F.R. �1614.407(c)(2). Specifically, our review of the record
herein indicates that the previous decision erroneously affirmed the
AJ's unduly narrow definition of appellant's complaint No. 1, and
limited the issue in appellant's complaints to consideration of only
two specific incidents of alleged denial of interpretive services,
when the record clearly indicates that appellant repeatedly raised
numerous such incidents, which were supported by corroborating evidence
in the report of investigation for Complaint No. 1 and in documentation
appellant previously submitted on appeal. While the AJ indicated that the
cited incidents were resolved within the grievance process, there is no
indication from the record that appellant agreed not to raise any of the
incidents within the EEO process. The mere fact that the allegations were
addressed in the grievance forum cannot be used to prevent appellant from
relying upon such incidents to prove the agency's continuing failure to
provide adequate interpretive services to its hearing impaired employees
herein. Moreover, although the AJ and the previous decision noted that
appellant failed to file separate EEO complaints on these incidents,
appellant's complaints herein, as clarified by appellant and accepted
by the agency for investigation, clearly indicated that appellant was
raising an ongoing series of denials of interpretive services by the
agency on "numerous occasions" which included, in each complaint, a
specific most recent designated incident. Appellant furnished sufficient
corroborating information concerning these allegations and the agency
never specifically rejected any such incidents as untimely filed.
Based on the foregoing, we find the previous decision's affirmance of
the AJ's ruling, which effectively narrowed the scope of appellant's
Complaint No. 1 to the single incident on which the AJ found appellant
not to be aggrieved, to be erroneous. Our present review of the record
herein also indicates that it contains sufficient information on which
to base a decision on the merits of the expanded issue in appellant's
Complaint No. 1.<3> Further, with regard to Complaint No. 2, we find
that appellant's reference to prior occasions would appear again to
indicate that appellant styled both his complaints to cover the agency's
continuing failure to accommodate over a sustained time period. On appeal
previously before the Commission, appellant also submitted additional
corroborative documentation which we consider herein.
Appellant's status as a "qualified individual with a disability" entitled
to reasonable accommodation under the Rehabilitation Act, has never
been disputed herein, and therefore, we need not revisit this issue.
Under the Rehabilitation Act, the agency's obligation to reasonably
accommodate hearing impaired employees includes providing effective
interpreter services during work-related activities where they are
expected to be present, so that hearing impaired employees can understand
what is going on at any time. Feris v. Environmental Protection Agency,
EEOC Appeal No. 01934828 (August 10, 1995), Request for Reconsideration
Denied, EEOC Request No. 05950936 (July 19, 1996). Selective written
summaries or ineffective or unreliable interpretive services will not
suffice to satisfy this obligation.
The additional safety, affirmative action, restructuring and service
related talks and meetings cited above are clear examples of work related
events for which the agency was obligated under the Rehabilitation Act
to secure reliable interpretive services on an ongoing basis. Appellant
has repeatedly submitted substantial corroborative evidence from other
hearing impaired coworkers which establishes that the agency failed to
meet the requirements of the Rehabilitation Act on an ongoing basis at
its Rochester, New York facility. This evidence indicated that such
services were frequently not provided because the agency relied upon
a coworker interpreter who was often unavailable. It also disclosed
that the agency apparently resorted to, on occasion, requiring hearing
impaired employees to attend separate meetings at which inadequate written
summaries were provided.<4> Appellant cited specific instances of such
denials in the grievances he filed between 1988 and September 1992.<5>
He provided such documentation to the agency investigator. The agency did
not present evidence to rebut appellant's account of these incidents.
The agency argues, on reconsideration, that appellant's allegations of
a continuing failure to provide adequate interpretive services at the
Rochester facility are now "moot" because appellant has transferred
to another facility. Appellant, however, asserts that his transfer was
caused, at least in part, by the agency's continuing Rehabilitation Act
violations herein, which also caused him considerable mental anguish. In
light of these representations and the evidence noted above, we find the
agency's mootness argument to be unpersuasive. We will not permit the
ongoing noncompliance indicated by the record herein to pass unremedied
and unacknowledged before this Commission.
Based on the foregoing, it is the decision of the Equal Employment
Opportunity Commission to REVERSE the agency's determination, in part,
and find that it discriminated against appellant based on his disability
when it failed to provide him with a qualified sign language interpreter
at work related meetings.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request meets the criteria of 29
C.F.R. �1614.407(c)(2), and it is the decision of the Commission to
grant appellant's request. The decision in EEOC Appeal Nos. 01950773 and
01942886 (December 11, 1995) and the agency's final decision are REVERSED
in part, as discussed above, and the agency is directed to comply with
the Commission's Order, set forth below. Since this is the Commission's
first determination on the merits of the additional allegations set forth
in Complaint Nos. 1 and 2, the parties are afforded reconsideration
rights on this aspect of the Commission's decision as set forth below
(Paragraphs MO795 and SO993).
ORDER
The agency is ORDERED to take the following remedial actions:
(1) The agency shall afford appellant the opportunity to transfer back
to his former position at the Rochester, New York, facility as soon as
an opening becomes available.
(2) The agency shall provide appellant and all of its hearing impaired
employees who can sign, with a qualified interpreter at important work
related staff meetings, training sessions, 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 (her) employment career, whether or not s/he
asks for an interpreter. The agency is ordered to retain, at all times,
the services of qualified interpreters as needed in order to fully meet
this reasonable accommodation obligation.<6>
(3) The agency shall provide the managers and supervisors at
its Rochester, New York, facility, with training regarding their
responsibilities under the Rehabilitation Act to provide reasonable
accommodation to qualified agency employees with disabilities. Specific
attention shall be paid during this training concerning the agency's
obligation to be responsive to the work-related needs of its hearing
impaired employees.
(4) The agency is directed to consider any claim appellant raises for
compensatory damages incurred as a result of the agency's continuing
failure to accommodate appellant, covering the time period from
November 21, 1991 until the date of appellant's transfer to another
facility. Within 10 days of the date this decision becomes final,
the agency shall advise appellant that he may submit his claim for
compensatory damages to the agency with supporting documentation
establishing the amount of the compensatory damages and that the damages
in question were the result of the agency's discrimination. Appellant
shall be advised that he must submit his claim within 45 days of his
receipt of the agency's letter. The agency shall issue a final decision
on appellant's claim for compensatory damages within 45 days of its
receipt of appellant's claim and supporting documentation.
(5) The agency is ORDERED to post at its Rochester, New York, 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.
(6) 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 evidence that the corrective action
has been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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
appellant. If the agency does not comply with the Commission's order, the
appellant may petition the Commission for enforcement of the order. 29
C.F.R. �1614.503(a). The appellant 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. ��
1614.408, 1614.409, and 1614.503(g). Alternatively, the appellant 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. �� 1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
The following are appeal rights on the merits of Complaint Nos. 1 and 2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
The following are the appeal rights on the procedural issues for Complaint
Nos. 1 and 2
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
Applicable to both procedural and merits determinations
RIGHT TO REQUEST COUNSEL (Z1092)
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:
OCT 16, 1998
Date Frances M. Hart
Executive Officer
1One of the documents submitted appears to be appellant's affidavit from
the agency's investigation of his third complaint.
2The record already contains corroborative evidence from two of these
individuals.
3We specifically decline, however, to revisit the previous decision's
holdings concerning the specifics of the March 23 and May 28, 1993
incidents, as we deem these rulings to be well supported by the record
herein. We note that much of the documentation appellant submits with
his request for reconsideration is already a part of the record. To the
extent that appellant has submitted new documentation which he has not
submitted to the agency, our decision will not rely upon it to reach
our holding herein.
4In grievances and other attached documentation submitted by appellant,
he and other hearing impaired agency employees asserted that the agency
failed on a constant and continuing basis from approximately October of
1988 until the time of the subject investigation, to provide interpreters
at safety, service talks, and other work related meetings. This
documentation also corroborates his assertion that agency management
scheduled separate safety talks for hearing impaired individuals at
which those individuals were given written copies of the information
that non hearing impaired employees had received orally at previous
meetings. It further indicates that agency management held meetings
on all tours (in August 1992) to inform Mail Processing employees of a
nationwide restructuring plan, without providing deaf employees with a
certified/qualified interpreter.
5For example, a copy of one of the grievances in the investigative report
for complaint 1 cites a service talk delivered on June 18, 1992 at which
appellant claimed, without rebuttal from the agency, that no interpreter
was provided for him.
6Since appellant is still employed by the agency, albeit at a different
facility, and will also have the opportunity to return to the Rochester
facility, this aspect of our order remains applicable.