0120081901
09-25-2009
Rosemary E. Dockter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Rosemary E. Dockter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 0120081901
Agency No. 4K-210-0088-07
DECISION
On March 18, 2008, complainant filed an appeal from the agency's February
21, 2008 final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency violated the Rehabilitation Act when it failed to
provide complainant with an interpreter on June 5, 2007, to enable her
to take the Rural Carrier Associate (RCA) examination.
BACKGROUND
At all times relevant to the issue in this complaint, complainant was
an applicant for employment at the Frederick, Maryland Post Office.
On September 18, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of disability (deafness)
when, on June 5, 2007 she was not provided a certified interpreter to
take the RCA examination.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
Final Agency Decision
The Final Agency Decision (FAD) first explained the following: on May 16,
2007, the Postal Service Examination Administrative Office, Baltimore,
Maryland notified complainant that she had been scheduled to take
the RCA Examination on June 5, 2007, at the American Legion Post #11,
in Frederick, Maryland. Complainant stated that she had called the
Manager of the Postal Employment Development Center (PEDC) in Baltimore,
Maryland, through the relay service center, to request an interpreter for
the examination. Complainant stated that the Manager of PEDC referred
her to the Post Office in Frederick, Maryland. She stated that she
left a message at the Frederick Post Office, and dropped off a written
request as well. She indicated that she never received a response
to her request for an interpreter before June 5, 2007, and when she
arrived for the examination, an interpreter was not present, and the
individual administering the examination simply told her to contact
Human Resources. Therefore, she did not take the test at that time.
However, she was rescheduled to take the examination on October 24,
2007, and complainant acknowledged that an interpreter was provided
on that subsequent date and she took the examination successfully.
Consequently, complainant's name was listed on the hiring register.
The FAD then found as follows: it is accepted for the purpose of this
analysis that complainant is an individual with a disability and that
she was a qualified individual with a disability inasmuch as she
later successfully took the RCA Examination with the accommodation
of a certified interpreter. However, complainant has not shown that
she was denied an accommodation under circumstances giving rise to an
inference of unlawful discrimination. The Manager of PEDC testified that
complainant only called three or four days prior to the examination,
and that he told her, through the relay service, that she should not
attend the examination in June. He stated that he told her he would
need at least one to two weeks advance notice to provide an interpreter
for the test. He stated that he asked complainant to provide him with a
written request for an interpreter so that he could reschedule the test
for another date and provide her an interpreter. He also stated that
he provided complainant with three alternative dates in October 2007,
on which the test could be rescheduled provided complainant called his
office or mailed in a written request within two weeks of the dates given.
He stated that after determining that she would be available on October
24, 2007, he called the Hearing and Speech Agency in Baltimore to confirm
that an interpreter would be available on that date. He then contacted
complainant to inform her of the scheduled examination.
The FAD then noted that the claim could be considered moot given
that complainant did successfully take the examination in October.
The FAD noted that taking the RCA examination entitles an individual to
nothing more than being listed on the hiring register in score order.
Individuals on the hiring register only achieve the potential to be hired
based on the future needs of the Postal Service, whether or not they are
veterans' preference eligible, and their test scores. Additionally,
there is no evidence in the record that any individual with a score
comparable to complainant's was hired between June and October of 2007.
The FAD further found that assuming, for the sake of argument only, that
complainant established a prima facie case of disability discrimination,
and that management articulated legitimate, nondiscriminatory reasons for
the actions at hand. The FAD further found that complainant presented
no persuasive evidence of pretext.
CONTENTIONS ON APPEAL
Complainant raises no new arguments on appeal. In response, the agency
asks the Commission to affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations
of an otherwise-qualified individual with a disability, unless the
agency can show that accommodation would cause an undue hardship. 29
C.F.R. � 1630.9. Reasonable accommodation includes modifications to the
manner in which a position is customarily performed in order to enable
a qualified individual with a disability to perform the essential job
functions. Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, EEOC No. 915.002
(October 17, 2002) (Enforcement Guidance). The Rehabilitation Act of 1973
prohibits discrimination against qualified disabled individuals. See
29 C.F.R. � 1630. In order to establish that complainant was denied a
reasonable accommodation, complainant must show that: (1) she is an
individual with a disability, as defined by 29 C.F.R. � 1630.2(g);
(2) she is a qualified individual with a disability pursuant to 29
C.F.R. � 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation absent undue hardship. See Enforcement Guidance.
When the individual is not an employee, but an applicant for employment,
the Commission's policy states:
An employer must provide a reasonable accommodation to a qualified
applicant with a disability that will enable the individual to have
an equal opportunity to participate in the application process and to
be considered for a job (unless it can show undue hardship). Thus,
individuals with disabilities who meet initial requirements to be
considered for a job should not be excluded from the application process
because the employer speculates, based on a request for a reasonable
accommodation for the application process, that it will be unable to
provide the individual with reasonable accommodation to perform the job.
Enforcement Guidance at Q. 13.
The Commission previously has held that an agency cannot be held liable
solely for failure to engage in the interactive process, but can be found
liable if the failure to engage in the interactive process resulted in
the agency's failure to provide reasonable accommodation. Broussard
v. United States Postal Service, EEOC Appeal No. 01997106 (September
13, 2002), req. to recon. den., EEOC Request No. 05A30114 (January 9,
2003). The sole purpose of the interactive process is to facilitate the
identification of an appropriate reasonable accommodation. Broussard,
EEOC Request No. 05A30114. The agency's failure to engage in this process
does not give rise to a separate cause of action because the interactive
process is not an end in itself. Id. Rather, the alleged denial of
reasonable accommodation gives rise to a cause of action, and in order
to prevail on such a claim, complainant must prove, by a preponderance
of the evidence, that she is a qualified individual with a disability
within the meaning of the Rehabilitation Act. See Bielfelt v. United
States Postal Service, EEOC No. Appeal 01A10475 (June 19, 2002).
Initially, we note that we shall assume, arguendo, that complainant
is an individual with a disability, under the Rehabilitation Act.
We further find that complainant's request for an interpreter for the RCA
Examination constituted a request for reasonable accommodation within the
meaning of the Rehabilitation Act. After a careful review of the record,
however, the Commission is not persuaded that complainant followed the
agency's procedure for requesting an interpreter by making her request
far enough ahead of time for the agency to be able to feasibly provide
one for the June 5, 2007 examination.1 At one point, complainant states
that she made the call 2 weeks prior, and at another point she asserts
that it was 3 weeks prior. She states that during the call, instead of
assisting her, the Manager of PEDC in Baltimore just referred her to
the Frederick Post Office. The record is devoid of evidence however,
to support her assertion that the Manager's response was simply to refer
her to another office.
Complainant also maintained that she dropped off a written request
to the Frederick Post Office, and yet there is nothing in the record
that would allow a fact finder to verify that this occurred. In the
Manager's version of events, there is no mention of him having referred
complainant to Frederick, and in fact, he describes what was said quite
differently. He states that complainant called three or four days prior
to the examination, and he told her there was not enough time to obtain
an interpreter on such short notice. He stated that he told her that
she should not attend the June examination, but that she should put her
request in writing at least 2 weeks ahead of time, and then she would be
provided an interpreter for an examination in October. As we do not have
the benefit of an AJ's findings after a hearing, as complainant chose a
FAD instead, we can only evaluate the facts based on the weight of the
evidence presented to us.2
Although complainant was not able to take the examination on June 5, 2007,
it is apparent that agency officials engaged in an interactive process
with complainant, because in October 2007 (after a delay which we do not
deem to be "inordinate" especially given that complainant has not shown
she would have been hired before October had she taken the examination
in June), she received her requested accommodation. The record evidence
does not indicate that agency officials failed to act in good faith in
attempting to accommodate complainant. Based on the record before us, we
simply cannot conclude that the agency violated the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record, including arguments not
specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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. 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.
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
________09/25/09__________
Date
1 The Handbook EL-307 states "Requests for testing accommodation not made
well in advance may result in the postponement of your scheduled exam."
Report of Investigation, Ex. 2, at 8.
2 The agency is reminded of its obligation, pursuant to 29 C.F.R. �
1614.108(b), to develop "[a]n impartial and appropriate factual
record upon which to make findings on the claims raised by the written
complaint." In this case, said obligation would require, at the very
least, a determination of the date that complainant contacted the manager
to request an accommodation.
??
??
??
??
2
0120081901
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120081901