01980651
08-11-2000
Joseph F. Hartung, et. al., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Joseph F. Hartung, et. al., )
Complainant, )
)
v. ) Appeal No. 01980651
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On October 22, 1997, the complainant, as class agent for the hearing
impaired employees within Internal Revenue Service agency headquarters,
filed an appeal with this Commission after failing to receive a response
from the agency regarding his allegation of agency breach of a June 6,
1997 settlement agreement. The Commission accepts complainant's appeal in
accordance with 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified
and hereinafter referred to as EEOC Regulations 29 C.F.R. ��1614.402,
.504(b)).<1>
The settlement agreement provided, in pertinent part, that:
1. The Agency will:
A. Conduct research and analysis of the fire alarm systems in all
IRS Headquarters' buildings which house hearing impaired employees to
determine their effectiveness for deaf or hard-of-hearing employees. Upon
completion, implement an acceptable and reasonable repair, modification
or equipment supplement which provides deaf or hard-of-hearing employees
with effective fire emergency notice.
Time frame: The research and analysis will be completed within 30
calendar days from the date this agreement is signed. The modifications
or equipment supplements will be in place 90 days after the completion
of the analysis or as soon as feasible given contracting or engineering
requirements.
B. [Person A] and [Person B] will walk the New Carrolton Federal Building
(NCFB) parking lot in Building C to inspect the lot entrance for any
access barriers to deaf or hard-of-hearing employees. They will also
inspect the premises for the existence of emergency notification devices
and analyze their effectiveness for use by hard-of-hearing employees.
A TTY system will be installed at the parking lot, Gate C, and at the
NCFB front desk.
Time frame: The parking lot walk through was conducted on April 25, 1997.
Any deficiencies identified in accessing the parking lot by deaf or
hard-of-hearing employees will be corrected within 90 calendar days from
the date this agreement is signed. The modification and/or installation
of any emergency notification devices in the parking lot area (building
C) and the TTY installation will occur within 90 calendar days from the
date this agreement is signed or as soon as feasible given contracting
or engineering requirements.
C. Any deficiencies identified in passenger elevators for which
Headquarters Operations is responsible will be inspected for the
effectiveness of their emergency notification devices for deaf or
hard-of-hearing employees. Appropriate steps will be taken to correct
these devices.
Time frame: Any needed modifications to the existing emergency
notification systems will occur within 90 to 120 calendar days from the
date this agreement is signed or as soon as feasible given contracting
or engineering requirements.
D. The NCFB training rooms will be equipped with light fixtures (portable
or permanent) designed to facilitate the efforts of interpreters to sign
to deaf or hard-of-hearing employees during training sessions which
require use of limited lighting. Prior to any purchase, the selected
lighting equipment will be tested by a hard-of-hearing employee, an
interpreter, and an instructor to ensure that it is acceptable, cost
effective, and practical. Procedures will be developed for administering
the use of this equipment.
Time frame: This equipment will be selected, tested, and made available
for use within 90 calendar days from the date this agreement is signed.
E. The accessibility by deaf or hard-of-hearing employees to
all Headquarters Operations building facilities will be monitored.
Identified barriers to effective access will be analyzed and corrective
action taken.
Time frame: Based on the analysis, access modifications (equipment and/or
procedural) will be made within 90 days from the date this agreement
is signed or as soon as feasible given contracting or engineering
requirements.
F. A member of the Telecommunications staff will inspect [Person C's]
telephone equipment to determine its effectiveness relative to the needs
of deaf or hard-of-hearing employees.
Time frame: Any deficiencies identified in the telephone system's ability
to provide effective, proficient service to [Person C] and other deaf
or hard-of-hearing IRS employees will be repaired or replaced within 90
calendar days from the date this agreement is signed.
G. The Service will consult with the Access Board, or other qualified
organization which specializes in analyzing access barriers of disabled
employees, to analyze the current evacuation procedures. Recommendations
will be reviewed and analyzed with the intent to implement those that
are reasonable, practical, and cost effective.
Time frame: The Access Board, or other qualified organization, will be
contacted within seven (7) calendar days from the date this agreement is
signed and a walk-through analysis scheduled to occur within 30 days or
as soon as such service is available. The implementation of any agreed
upon recommendations will occur within 90 calendar days from the date
the recommendations are approved by the Chief, Headquarters Operations
or as soon as feasible given contracting or engineering requirements.
Note: Every effort will be made to timely complete all of the work
cited in this agreement. However, architectural design and layout,
purchase orders, contractor availability, and procurement processing
activities may impact efforts to meet some of the specified deadlines.
Headquarters Operations agrees to ensure that any items which are to
be procured or services contracted will receive the highest managerial
priority in the Headquarters Operations procurement system.
By letter to the agency dated September 9, 1997 ( received by the agency
on September 15, 1997), complainant alleged that the agency was in breach
of the entire settlement agreement, and indicated that the agency should
specifically implement its terms. Specifically, complainant alleged
that the agency failed to provide the accommodations they had agreed to
provide in the agreement.
After complainant filed his appeal with the Commission, numerous requests
were made to the agency to provide the Commission with the agency's
complaint file. When the file was not received, on June 6, 2000 the
Commission issued a Notice to Show Good Cause why the Commission should
not sanction the agency for its failure to respond to requests by the
Commission for information. In response to the Commission's Notice,
the agency submitted a complaint file with a final date of entry of
October 30, 1997, indicating that provisions B, C, E, and G of part
(1) of the settlement agreement had been accomplished by the agency,
but that provisions A, D, and F of part (1) were still in process.
The record specifically noted that although some of the items had not
been completed as of October 1997, administrative processes had been
initiated to facilitate their completion. In an internal memorandum,
dated October 30, 1997, the National Director, EEO and Diversity,
maintained that the settlement agreement had not been breached.
In the instant case, we find that there is insufficient information
in the record to make a decision regarding whether the agency is in
breach of the parties June 6, 1997 settlement agreement. While the
agency has provided some information indicating it has complied with
certain provisions of part (1) of the agreement, as of October 30, 1997,
they admittedly had not complied with provisions A, D, and F. However,
although there is no evidence in the record that part (1) provisions A,
D, and F have been met, as noted above, the agency file indicates that as
of October 1997, those provisions of the agreement were in the process
of being fulfilled. Therefore, it remains unclear as to whether the
agency has now complied with those provisions of the agreement, or if
provisions A, D, and F remain unmet.
We shall remand the matter so that the agency can supplement the record
to show if (and when) it complied with provisions A, D, and F of part
(1) of the settlement agreement. Because we are remanding the claims of
breach regarding part (1) provisions A, D, and F, we do not address in
this decision whether the agency breached the remaining provisions in part
(1), provisions B, C, E, and G. The Commission presently finds that the
instant breach claims should not be decided separately. We shall remand
the case to the agency to supplement the record and to issue a decision
regarding the entirety of complainant's allegation of breach of the terms
of the June 6, 1997 settlement agreement. See 29 C.F.R. � 1614.504(c).
Accordingly, the case is REMANDED to the agency for further processing
in accordance with this decision and the Order herein.
ORDER
The agency is ORDERED to take the following actions:
Within 15 calendar days of the date this decision becomes final,
the agency shall supplement the record with evidence of compliance
with provisions A, D, and F of part (1) of the June 6, 1997 settlement
agreement. Specifically, the agency shall provide evidence of measures
taken to provide hard-of-hearing employees with effective emergency
notice in case of fire in all IRS Headquarters buildings, to install
light fixtures in training rooms designed to facilitate the efforts of
interpreters during training requiring limited light, and to provide
an effective telephone system service for hard of hearing employees.
The agency shall also supplement the record with any other available
evidence concerning its compliance with provisions B, C, E, and G of part
(1) of the agreement.
Within 30 calendar days of the date this decision becomes final, the
agency shall issue a decision regarding complainant's allegation of
breach of each term of part (1) (A-G) of the June 6, 1997 settlement
agreement.
A copy of the agency's decision must be sent to the Compliance Officer
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (Z1199)
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:
August 11, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov