01a42463
01-13-2005
James R. Eckenrode, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Captial-MetroArea), Agency.
James R. Eckenrode v. United States Postal Service
01A42463
January 13, 2005
.
James R. Eckenrode,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Captial-MetroArea),
Agency.
Appeal No. 01A42463
Agency No. 1K-201-0036-02
Hearing No. 100-2003-8297X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Clerk at the agency's suburban
facility in Gaithersburg, Maryland, filed a formal EEO complaint on July
12, 2002, alleging that the agency had discriminated against him on the
basis of disability (deafness) when on April 17, 2002, the Plant Manager
(PM) held a meeting with a question and answer session without a certified
interpreter present.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that after viewing the evidence in a light most favorable
to complainant, a decision without a hearing was appropriate as there
were no genuine issues of material fact in dispute. The AJ also found
that assuming, arguendo, that complainant established a prima facie
case of disability discrimination, the agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the AJ found that a meeting was scheduled for one a.m. on April 16,
2002, to discuss recent service talks and newsbreaks with employees
at complainant's facility. The AJ further found that the PM stated
he scheduled the meeting for that day and time in order to reach
the greatest number of employees with the least amount of impact on
mailflow and service. (Report of Investigation, Affidavit B). The AJ
found that the PM further stated that an interpreter was scheduled for
the meeting, however the interpreter did not show up due to car trouble
and it was not possible to find another interpreter at the last minute,
in part due to the fact that the meeting was schedule for one a.m. Id.
The AJ found that the PM stated he decided not to reschedule the meeting
because the same information was set to be presented at the facility's
scheduled bi-weekly meetings where interpreters would be in attendance.
Complainant was also presented with the information in newsletters and on
bulletin boards. Id. The AJ found also that PM stated that he was aware
at the outset that not all employees at complainant's facility would be
able to attend the April 16, 2002, meeting, and as such, would not receive
the relevant information personally from him. Id. Additionally, the AJ
found that the meeting at issue did not address safety issues and that
complainant has not alleged that the agency failed to provide him with
an interpreter at any other meetings. The AJ concluded that complainant
failed to show that the agency's legitimate, nondiscriminatory reasons
for its actions were a pretext for unlawful discrimination.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
As an initial matter we note that, as this is an appeal from a FAD
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). The Commission's regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine
issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is �genuine� if
the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact
is �material� if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, it is
not appropriate for an AJ to issue a decision without a hearing. In the
context of an administrative proceeding, an AJ may properly a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. Petty v. Defense Security
Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. We find, however, that the AJ erred in using a
disparate treatment framework to analyze this complaint. We find that the
instant case should have been decided using a reasonable accommodation
analysis. Under the Commission's regulations, an agency is required to
make reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. 1630.2(o)
and (p).<1> 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)).
Here, we find that the agency does not contest that complainant is
entitled to the reasonable accommodation of an interpreter at agency
meetings. Rather, it explains that an interpreter was scheduled to
attend the meeting at issue, but cancelled at the last minute due to
circumstances beyond the agency's control. The agency further contends
that it attempted to obtain the services of another interpreter, but
was unable to do so on such short notice and at such an early hour.
Additionally, the agency states that the information disseminated at
the April 16, 2002, meeting was also provided at several other meetings
where interpreters would be available. The record also reflects that
the topic of the meeting did not include safety information, and that
not all employees were required to attend as the information was also
available at additional meetings and through other sources. Given these
circumstances, we concur with the AJ's finding of no discrimination
and decline to find that the agency violated the Rehabilitation Act.
Therefore, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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
January 13, 2005
__________________
Date
1 There is no dispute among the parties that complainant is a qualified
individual with a disability, accordingly we will address solely
complainant's contention that the agency denied him a reasonable
accommodation.