01973231
02-02-2000
Osama Handal, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.
Osama Handal v. United States Postal Service
01973231
February 2, 2000
Osama Handal, )
Complainant, )
) Appeal No. 01973231
v. ) Agency No. 4A-070-1119-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of physical disability (hearing impaired) and in reprisal for prior
protected activity in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges
that the agency discriminated against him by denying him a reasonable
accommodation for his disability by failing to provide an interpreter
during a safety video entitled "Sharing the Road." Complainant also
alleges that the agency discriminated against him by calling the police
to escort him out of the building, placing him on off duty status without
pay, and ultimately removing him for threatening a postal supervisor on
May 2, 1996.<2> The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission affirms the FAD
in part, reverses the FAD in part, and remands the complaint for further
action consistent with this decision.
The record reveals that during the relevant time, complainant was
employed as a Part-Time Flexible Letter Carrier at the agency's Haledon,
New Jersey facility. Complainant is totally deaf and is unable to
speak clearly. He was, at the time, one of three hearing impaired
employees at the facility. Complainant communicated with his co-workers
using a combination of mouthed words, hand gestures and written notes.
His supervisors did not know sign language, and an interpreter was not
made available to complainant on a regular basis. The record indicates
that communication between complainant and his supervisors was difficult
and that complainant felt management was often unresponsive to his
questions and needs.
On April 26, 1996, Letter Carriers were asked to watch a safety video
entitled "Sharing the Road" while they waited for mail. Management
represented that the District Office required the film to be shown as
soon as possible and that they were unable to secure the services of
an interpreter quickly so they proceeded to show the video without an
interpreter present. Complainant did not watch the video. One of the
other deaf employees did watch the video and attested that it was not
"closed captioned" although there was written wording displayed on the
screen during approximately 50% of the tape's total playing time.
On May 2, 1996, complainant, believing that he was being deprived
of hours, followed a supervisor (S1) into another supervisor's (S2)
office and began gesturing "wildly," swinging his arms frantically while
contorting his face, pacing and uttering loud sounds. Complainant's
actions frightened both supervisors, and S2 called the police. In the
meantime, a co-worker (CW), who heard strange sounds coming from the
office, intervened and succeeded in leading complainant away to a work
area. CW described complainant as very angry and witnessed complainant
use his hands to make the shape of a gun and point towards S2's office.
After the police arrived and successfully communicated to a calmer
complainant that he had to leave the premises, CW informed S2 about the
perceived gun motion because he considered it a threat. Complainant
was placed in off duty status without pay pending the results of an
internal investigation. He was subsequently issued a Notice of Removal.
Complainant denies that he gestured with a gun towards S2 and states that
he was unaware that he was making loud noises. He also stated that he
was very embarrassed when the police were called to escort him out of
the building.
Believing the agency discriminated against him, complainant sought EEO
counseling and filed a complaint on July 26, 1996. At the conclusion
of the investigation, pursuant to 64 Fed. Reg. 37,644, 37,656-57 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108(f)),
complainant was granted thirty days to request a hearing before an EEOC
Administrative Judge. The agency denied complainant's untimely request
for a hearing and issued a final decision finding no discrimination.
On appeal, complainant argues that the holiday season prevented him
from making a timely request for a hearing. The Commission disagrees.
Complainant's representative received proper notice of complainant's
rights on November 27, 1996, and we fail to see how the annual occurrence
of Thanksgiving and Christmas prevented complainant's representative
from filing a timely response before Friday, December 27, 1996.
Complainant further states, without explanation, that the FAD is an
"erroneous conclusion of law." In response, the agency requests that
we affirm the FAD and submits a copy of the findings of an arbitrator
who ruled in complainant's grievance proceeding that there was cause
for placing complainant in off duty status but not for removing him.
The arbitrator ordered complainant reinstated with back pay.
Retaliation under Title VII
Based on the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
the Commission agrees with the agency that complainant failed to
establish a prima facie case of retaliation because there was scant
evidence that the named responsible management officials had knowledge of
complainant's prior EEO activity which took place three years earlier at
another work location and because there was no causal link between his
prior EEO activity and the instant claims of retaliation. See Devereux
v. United States Postal Service, EEOC Request No. 05960869 (April 24,
1997). We note that complainant opposed the agency's failure to provide
interpretive services on April 29, 1996 and again on April 30, 1996, and
on May 2, 1996, he believed that management was depriving him of hours.
However, the record indicates that complainant regularly believed he was
being denied hours, and S1 attested that when she told complainant to go
home, there was no work available and that a delivery truck was not due
to arrive for two more hours. Accordingly, we decline to infer that S1's
decision to send him home on May 2, 1996 was motivated by retaliatory
animus towards complainant for opposing the agency's failure to provide
interpretive services. Accordingly, we find that the agency did not
retaliate against complainant.
Discrimination under the Rehabilitation Act
A. Disparate Treatment
There is no dispute between the parties that complainant is a qualified
individual with a disability as defined by the Rehabilitation Act.<3>
Upon review of the record however, we find that complainant failed to
establish a prima facie case of disability discrimination in regard
to the discipline actions taken against him as a result of the May 2,
1996 incident. See Prewitt v. United States Postal Service, 662 F.2d
292 (5th Cir. 1981). Four witnesses to the incident corroborated each
other's accounts of complainant's inappropriate conduct in S2's office,
and although only CW witnessed the gun threat, the record reveals that
in 1992, at a different agency facility, complainant was also suspended
for making threatening gun gestures towards a management official.
Complainant has not presented credible evidence that his conduct was
acceptable or that similarly situated employees who engaged in such
conduct were treated more favorably than he was. Both the manager of
the Halcedon, New Jersey facility and S2 emphatically stated that the
agency had "zero tolerance" for violent threats against postal employees.
By engaging in such behavior, the Commission finds that complainant
was not meeting the legitimate expectations of his job, and we thus
decline to infer a discriminatory motive on the part of the agency in
taking disciplinary action against complainant as a result of the May 2,
1996 incident.
B. Reasonable Accommodation
The Commission's regulations define a reasonable accommodation to be,
inter alia, a modification or adjustment that enables a disabled employee
to enjoy equal benefits and privileges of employment as are enjoyed by
its other similarly situated employees without disabilities. See 29
C.F.R. � 1630.2(o)(iii). It is unlawful for the agency not to make
reasonable accommodation for the known physical or mental limitations
of an otherwise qualified disabled employee unless the agency can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business. See 29 C.F.R. � 1630.9(a). Under the
Rehabilitation Act, the agency's obligation to reasonably accommodate
hearing impaired employees includes providing effective interpreter
services during work-related activities where hearing impaired employees
are expected to be present. See Ortiz v. United States Postal Service,
EEOC Request No. 05960270 (October 16, 1998). 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. Environmental,
Protection Agency, EEOC Appeal No. 01934828 (August 10, 1995), request
for reconsideration denied, EEOC Request No. 05950936 (July 19, 1996)
(citing Bradley v. United States Postal Service, EEOC Request No. 05920167
(March 26, 1992); Jackson v. United States Postal Service, EEOC Request
No. 05880750 (April 18, 1989)).
The FAD concluded that the agency did not deprive complainant of
a reasonable accommodation when it failed to provide interpreter
services for "Sharing the Road." The FAD found that an interpreter
was not necessary since the video was partially captioned and that
an interpreter may have detracted from the complainant's ability to
focus his full attention on the film's written messages. As noted
above, a deaf employee who watched the film attested that it was not
"closed captioned." The FAD stated that it has hired interpreters for
complainant and other deaf employees in the past "at crucial times"
and that no other deaf employee filed a complaint in regard to this
same matter. The FAD concluded that since complainant did not watch
the video, he was not in a position to evaluate whether he was truly
disadvantaged by the absence of an interpreter.
We disagree with the FAD's conclusions and find, for the following
reasons, that the agency discriminated against complainant by denying him
the services of an interpreter for the showing of the safety video on
April 29, 1996. The Commission has held that meetings and discussions
involving safety issues require the services of an interpreter as a
reasonable accommodation for hearing impaired individuals. See Feris,
supra. The agency provided no evidence that it attempted to contract the
services of an interpreter in contemplation of showing the safety video
or even after complainant requested such services. Moreover, while we
note that the record does not suggest that the nature of complainant's
position required full time interpretive services, there were three
deaf employees working at this facility, and the record indicates that
interpreter services were sporadic. Since the District Office ordered
"Sharing the Road" to be shown as expeditiously as possible, we conclude
that management believed the video was important. Therefore, management
should have acted immediately to secure an interpreter as a reasonable
accommodation for complainant's disability. The agency cannot escape
its obligation to provide complainant a reasonable accommodation simply
because of the difficulty of scheduling interpreter services in a timely
manner. The Commission finds no evidence in the record to support a
finding that the provision of interpreter services would be unduly costly,
extensive, substantial or disruptive or that would fundamentally alter
the nature of the agency's operation. See 29 C.F.R. � 1630.2(p).
While the FAD argued that the other two hearing impaired employees did not
file complaints, the Commission notes that a qualified individual with
a disability is entitled to an effective and reasonable accommodation
regardless of whether other disabled employees request one. The FAD
also argued that an interpreter would have, in fact, interfered with
complainant's ability to understand the written messages. It is not
management's place to second guess what kind of reasonable accommodation
would be effective. Rather, the appropriate accommodation is best
determined through a flexible and interactive process involving management
and complainant communicating about how to remove or alleviate barriers
to complainant's equal employment opportunity. See 29 C.F.R. pt. 1630,
app. � 1630.9 (1997). In the instant case, management believed that
complainant could glean enough information "to grasp the essential
message" of the safety video from written words on the screen.
Although management ultimately has the discretion to choose between
effective accommodations, since words were only on the screen for 50%
of the time and there was no closed captioning for the hearing impaired,
we do not find that management actually offered complainant an effective,
reasonable accommodation.
Accordingly, the Commission finds that the agency discriminated against
complainant when, on April 29, 1996, it denied him an effective
and reasonable accommodation for his viewing of the safety video
entitled "Sharing the Road." We disagree with the agency' argument
that "intervening events" have rendered the accommodation dispute an
"abstract question." We will not permit violations of the Rehabilitation
Act to pass unacknowledged and unremedied by this Commission. See Ortiz
v. United States Postal Service, EEOC Request No. 05960270 (October
16, 1998). Moreover, we also find that the agency did not make a good
faith effort to accommodate complainant with respect to his request
for an interpreter. Therefore, the agency shall conduct a supplemental
investigation pertaining to complainant's entitlement to compensatory
damages incurred as result of the agency's discriminatory action.
See The Civil Rights Act of 1991, as amended, 42 U.S.C. � 1981a et seq.;
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01961997
(July 17, 1998).
Therefore, after a careful review of the record, it is the Commission's
decision to affirm the agency's findings of no discrimination in regard
to the discipline issued to complainant after the May 2, 1996 incident
and to reverse the agency's finding in regard to the April 29, 1996
reasonable accommodation dispute. We order the agency to comply with
the Commission's ORDER, as set forth below.
ORDER
The agency is ORDERED to take the following actions:
(1) 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.
(2) The agency shall provide the managers and supervisors at its Haledon,
New Jersey facility, with a minimum of eight hours of 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.
(3) The agency shall conduct a supplemental investigation pertaining
to complainant's entitlement to compensatory damages incurred as a
result of the agency's discriminatory action. See West v. Gibson,
527 U.S. 212 (1999); Cobey Turner v. Department of the Interior, EEOC
Appeal Nos. 01956390 and 01960158 (April 27, 1998). The agency shall
afford complainant sixty days to submit additional evidence in support
of his claim for compensatory damages. Complainant shall cooperate
in the agency's efforts to compute the amount of compensatory damages
and shall provide all relevant information requested by the agency.
Within thirty days of its receipt of complainant's evidence, the agency
shall issue a final decision determining complainant's entitlement to
compensatory damages, together with appropriate appeal rights.
(4) The agency is ORDERED to post at its Haledon, New Jersey 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 calendar days of the date this decision
becomes final, and shall remain posted for sixty 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 below entitled "Implementation of
the Commission's Decision," within ten calendar days of the expiration
of the posting period.
(5) The agency is further directed to submit a report of compliance,
as provided in the paragraph below entitled "Implementation of the
Commission's Decision." The report shall include evidence that the
corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
February 2, 2000
Date Carlton M. Hadden, Acting 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
________________________
Equal Employment Assistant
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. 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.
2 The FAD declined to address complainant's removal claim stating that
he did not raise the claim during counseling or in his formal complaint.
We note, however, that in its acceptance letter dated August 15, 1996,
the agency accepted the removal claim for investigation, and the EEO
counselor specifically noted that the removal claim was directly related
to complainant's placement in off duty status without pay.
3 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.