05990136
11-29-2000
Joseph Ortiz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region) Agency.
Joseph Ortiz v. United States Postal Service
05990136
November 29, 2000
.
Joseph Ortiz,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(N.E./N.Y. Metro Region)
Agency.
Request No. 05990136
Request No. 05960270
Appeal Nos. 01950773; 01942886
Agency Nos. 1B-1395-93; 1B-1540-93
Hearing No. 160-94-8110X (on 1B-1395-93 only)
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Joseph
Ortiz v. United States Postal Service, EEOC Request No. 05960270 (October
16, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The Commission initially concurred with the decision of the Administrative
Judge (AJ) that complainant was not aggrieved under the Rehabilitation
Act of 1973, <2> as amended, 29 C.F.R. � 791 et seq., with respect
to his initial allegation (Allegation 1) that the agency discriminated
against him in the basis of disability (deafness) by failing to provide
an interpreter as an accommodation to his impairment at numerous meetings
held at the agency's Rochester, New York facility, most recently on March
23, 1993, when a safety talk was conducted without an interpreter for
the hearing impaired. Further, the Commission concurred with the AJ's
decision with respect to complainant's second allegation (Allegation
2) that it did not discriminate against complainant on the basis of
disability by failing to provide an interpreter as an accommodation to
his disability at a Memorial Day Service Talk on May 28, 1993. See Ortiz
v. United States Postal Service, EEOC Appeal Nos. 01950773 and 01942886
(December 11, 1995).
Pursuant to complainant's request for reconsideration filed on January
29, 1996, the Commission found that the previous decision erroneously
affirmed the AJ's unduly narrow definition of the allegations made by
complainant in Allegation 1. The Commission found that the AJ erred
by limiting the issue in complainant's Allegation 1 to consideration of
only a specific incident of the alleged denial of interpretive services,
when the record indicates that complainant raised numerous incidents
as evidence of continuing violations of the Rehabilitation Act which
were supported by corroborating evidence. The Commission found that
complainant furnished sufficient information concerning his allegations
of discrimination, and the agency never specifically rejected any
such incidents as untimely filed. As such, the Commission found that
complainant cited numerous work-related events for which the agency was
obligated under the Rehabilitation Act to secure reliable interpretive
services on an ongoing basis. Further, the Commission found that
complainant submitted substantial corroborative evidence from other
hearing impaired coworkers which established that the agency failed
to meet the requirements of the Rehabilitation Act on an ongoing basis
at the facility at issue. Specifically, the Commission found that the
evidence established that the agency apparently occasionally required
hearing impaired employees to attend separate meetings at which inadequate
written summaries were provided. As a result, the Commission reversed
the agency's findings of no discrimination in part, and found that the
agency discriminated against complainant when it failed to provide him
with a qualified sign language interpreter at work related meetings as
alleged in Allegations 1 and 2. As corrective action, the Commission
ordered the agency to, among other things, afford the complainant an
opportunity to transfer back to his former position and facility and to
consider his claim for compensatory damages. The Commission's decision
also indicated that since this was its first determination on the merits
of the additional allegations set forth in both of the complaints,
the parties were being afforded reconsideration rights.
On November 4, 1998, the agency filed a request for reconsideration of
the Commission's decision. In its request, the agency contends that
the Commission incorrectly expanded the scope of complainant's two
complaints to include additional violations which complainant could
have detailed with his initial complaint. The agency contends that
the discriminatory events which occurred between 1988 and 1992 should
be considered background information only, but not the basis for a
finding of discrimination. In addition, the agency contends that the
Commission was in error when it ordered the agency to afford complainant
the opportunity to transfer back to his former position at the agency's
Rochester, New York facility and to consider any claim complainant may
have for compensatory damages.
Initially, we address the agency's contention that the Commission
improperly expanded the scope of complainant's two complaints. The AJ
found that regarding Allegation 1, since complainant
did not attend the �safety talk� which took place on March 23, 1993,
he was not an aggrieved person and failed to state a claim. While the
AJ noted that complainant identified six other instances of alleged
failure to accommodate, he addressed them only by stating that they
were formally settled in a grievance process and there was no record
that complainant filed an EEO complaint in them. After consideration
of the record, the Commission agrees with our previous finding that
the AJ too narrowly defined complainant's Allegation 1 by limiting the
allegations to consideration of a specific incident of alleged denial
of reasonable accommodation and failing to consider the allegation
as continuing violations. The record establishes that complainant
raised numerous incidents which were supported by evidence in the
investigative report of Allegation 1. As the Commission stated in
its previous decision, simply because several other allegations of
failure to accommodate complainant's impairment were addressed in the
grievance forum, the agency cannot prevent complainant from relying on
such incidents to demonstrate the agency's continuing failure to provide
interpretive services to its hearing impaired employees. In addition,
we find that the Commission's previous decision correctly stated that
while complainant did not file separate EEO complaints on these other
incidents, complainant's complaints indicated that he raised an ongoing
series of denials of interpretive services which included a specific
most recent designated incident. See Guba v. Department of the Army,
EEOC Request No. 05970635 (February 1, 1999). As such, we cannot find
that the Commission's prior decision was in error when it found the AJ
erred in narrowing the scope of Allegation 1. Similarly, we cannot find
that the Commission erred with regard to Allegation 2 when it found that
complainant's reference to prior occasions demonstrated that he alleged
the agency continuously failed to accommodate hearing impaired employees
over a period of time.
The Commission next addresses the agency's contention that
the Commission's prior decision erred in ordering the agency to
afford complainant the opportunity to transfer back to his former
position at the Rochester, New York facility as well as providing for
consideration of compensatory damages. The Commission's prior decision
noted that complainant asserted that his transfer from Rochester was
caused, at least in part, by the agency's continuing Rehabilitation
Act violations, which also caused him considerable mental anguish.
Further, the Commission's decision found that it would not permit the
ongoing noncompliance indicated by the record to pass unremedied and
unacknowledged. After consideration of the record, we find that the
Commission properly determined that complainant's testimony, stating that
his transfer was in part caused by the agency's failure to accommodate
his hearing impairment and his resulting mental anguish, was credible.
Therefore, an award of relief which included the order that the agency
afford complainant the opportunity to assume the position which he would
have held absent the discrimination (i.e. the opportunity to transfer
back to his former position) in addition to consideration of his claim
for compensatory damages was not erroneous.
Thus, after a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Request No. 05960270 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
To the extent the agency has not already done so, the agency is ORDERED
to take the following remedial actions:
(1) The agency shall afford complainant the opportunity to transfer back
to his former position at the Rochester, New York, facility as soon as
an opening becomes available. Complainant shall
have ten (10) calendar days in which to accept or reject the agency's
offer of transfer.
(2) The agency shall provide complainant 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.
(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 complainant raises
for compensatory damages incurred as a result of the agency's continuing
failure to accommodate complainant, covering the time period from November
21, 1991 until the date of complainant's transfer to another facility.
Within 10 days of the date this decision becomes final, the agency shall
advise complainant 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. Complainant 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 complainant's claim
for compensatory damages within 45 days of its receipt of complainant'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 (H0900)
If complainant 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 (K0900)
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 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 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2000
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The United States Postal Service, Rochester, New York, postal facility,
shall comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, Rochester, New York, postal facility
has remedied the employee affected by the Commission's finding through
an order to provide reasonable accommodation through the provision of
interpretive services at work related meetings, training for management
employees and proven compensatory damages. The United States Postal
Service, Rochester, New York, postal facility, will ensure that qualified
interpreters will be provided to hearing impaired employees at important
work related meetings and that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of the Rehabilitation Act.
The United States Postal Service, Rochester, New York, postal facility,
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
______________________________
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 On 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. The regulations, as amended, may also be found
at the Commission's website at www.eeoc.gov.
2 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.