0120114330
02-14-2013
Tahir Rathore, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Security Service), Agency.
Tahir Rathore,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Security Service),
Agency.
Appeal No. 0120114330
Agency No. DSS-10-001
DECISION
On September 23, 2011, Complainant filed an appeal from the Agency's August 19, 2011 final decision concerning his 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency is liable for compensatory damages in connection with its failure to provide Complainant with a reasonable accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an IT Specialist, IA-2210-03, at the Agency's Office of the Chief Information Officer in Alexandria, Virginia. Complainant's First Level Supervisor was the Test and Evaluation Branch Chief (S1).
The Agency's July 2, 2009 "Procedure for Requesting a Sign Language Interpreter" (Interpreter Procedure) outlines the standard procedure for requesting an interpreter as a disability accommodation. Report of Investigation (ROI), at 366. Among other things, the Interpreter Procedure specifies that "[a]n authorized employee of the office scheduling a meeting or event which will require interpreting services (staff meeting, training, office function, etc.) is responsible for initiating a request for interpreter services by completing a DSS Form 231 Work Order Request, at least ten (10) working days in advance." Id. In addition, the Interpreter Procedure states that "DSS Form 231 is not required when an individual needs interpretive services on a repeated bases (e.g., weekly staff meetings)." Id.
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (deafness) when it failed to provide him with a sign language interpreter during staff meetings on the following dates: November 3, 2009, January 12, 2010, January 19, 2010, February 18, 2010, February 25, 2010, and March 11, 2010. Complainant requested compensatory damages.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
Initially, the decision found that Complainant is a qualified individual with a disability under the Rehabilitation Act. Next, the decision acknowledged that the Agency "did not always accommodate the Complainant's requests for reasonable accommodation" but found that it had reasons for not providing an interpreter on those dates. Regarding the meeting on November 3, 2009, the decision determined that the Agency failed to provide an interpreter due to "confusion over the date of the meeting." Regarding the meeting on January 12, 2010, the decision determined that the meeting was cancelled. Regarding the meetings on January 19, 2010 and February 18, 2010, the decision determined that the Agency failed to schedule an interpreter due to "management's oversight." Regarding the meetings on February 25, 2010, the decision determined that the meeting "did not have an associated request." Regarding the meeting on March 11, 2010, the decision determined that the interpreter did not make it to the Agency site due to traffic delays. Finally, the decision found that the Agency was not liable for compensatory damages because it made a good faith effort to accommodate Complainant's disability. As evidence of good faith, the decision noted that the Agency consulted with Complainant to determine that an interpreter was the best method to accommodate his participation in meetings. Moreover, the decision noted that the Agency implemented its Interpreter Procedure to provide Complainant with an interpreter on 11 occasions between November 2009 and February 2010. The decision did not order equitable relief, attorney's fees, or other corrective action.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency did not make a good faith effort to accommodate his disability. Specifically, Complainant reiterated that the Agency failed to provide him with an interpreter during the cited staff meetings, despite the fact that he had explicitly requested an interpreter or the meetings were regularly scheduled. Moreover, Complainant argued that the Agency's repeated failure to provide him with an interpreter reflects its "nonchalant attitude" and disrespect for his need for reasonable accommodation.
In opposition, the Agency contended that the only issue was whether Complainant is entitled to compensatory damages when he was not provided with an interpreter on January 19, 2010 and February 18, 2010 due to a management oversight. The Agency argued that there is no legal authority to award Complainant compensatory damages based on a mere management oversight when it has provided an interpreter on numerous prior occasions when required.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 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").
Liability for Compensatory Damages
As an initial matter, we note that the Agency conceded in its final decision that it "did not always accommodate the Complainant's requests for reasonable accommodation." Agency's August 19, 2011 Final Decision, at 5-6. Thus, the only issue on appeal is whether the Agency is liable for compensatory damages in connection with its failure to reasonably accommodate Complainant.
Under Section 102 of the Civil Rights Act of 1991, compensatory damages may be awarded for pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. However, this section also provides that an agency is not liable for compensatory damages in cases of disability discrimination where it demonstrates that it made a good faith effort to accommodate the complainant's disability. A good faith effort can be demonstrated by proof that the agency, in consultation with the disabled individual, attempted to identify and make a reasonable accommodation. Schauer v. Soc. Sec. Admin., EEOC Appeal No. 01970854 (July 13, 2001).
Upon review, we find that the Agency made a good faith effort to accommodate Complainant's disability on January 12, 2010 and March 11, 2010. Regarding the meeting on January 12, 2010, the record reflects that the Agency cancelled the scheduled meeting. ROI, at 186. The Agency, by canceling the meeting, ensured that there was no information communicated during the meeting for which Complainant did not have equal access. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 14 (as revised Oct. 17, 2002) (Reasonable Accommodation Guidance) (an employer has to provide reasonable accommodation to enable an employee with a disability to have equal access to information communicated in the workplace to non-disabled employees). Regarding the meeting on March 11, 2010, the record reflects that the Agency procured an interpreter, but the interpreter was delayed due to traffic.1 ROI, at 193, 281.
In contrast, we find that the Agency did not make a good faith effort to accommodate Complainant's disability on November 3, 2009, January 19, 2010, February 18, 2010, and February 25, 2010. The undisputed record shows that the Agency did not provide Complainant with an interpreter for meetings that occurred on those dates.
Regarding the meeting on November 3, 2009, the record reflects that Complainant requested an interpreter by completing a DSS Form 231 on October 20, 2009. ROI, at 293. Although Complainant requested an interpreter in accordance with the Agency's Interpreter Procedure, there is no evidence that the Agency took any action on Complainant's request.
Regarding the meetings on January 19, 2010 and February 25, 2010, the record reflects that they were recurring bi-weekly or once-a-month meetings. Id. at 193, 284. Although a Human Resources Specialist testified that management was responsible for ensuring that an interpreter was present for regularly scheduled meetings, there is no evidence that the Agency took any steps towards obtaining an interpreter for meetings on those dates. Id. at 211. When asked why the Agency did not provide an interpreter for the meeting on February 25, 2010, S1 testified that "this may have been missed." Id. at 193.
Regarding the meeting on February 18, 2010, the record reflects that Complainant requested an interpreter by completing a DSS Form 231 on February 5, 2010. Id. at 275. Although Complainant requested an interpreter in accordance with the Agency's Interpreter Procedure, there is no evidence that the Agency took any action on Complainant's request. When asked by Complainant why the Agency did not provide an interpreter, S1 responded in an email, "I can't say why I didn't request the interpreter, but suffice it to say I was busy with other tasking." Id. at 276. During the investigation, when asked why the Agency did not provide Complainant with an interpreter, S1 testified that "it appears this one fell through the cracks." Id. at 193.
Based on the above, we find that the Agency failed to make a good faith effort to reasonably accommodate Complainant's disability on November 3, 2009, January 19, 2010, February 18, 2010, and February 25, 2010. The Commission has previously found that an agency did not make a good faith effort to accommodate a complainant's disability when it failed to provide a sign language interpreter. See Yost v. U.S. Postal Serv., EEOC Appeal No. 01A51457 (June 13, 2006) (no good faith effort where the agency failed to provide complainant with an interpreter during five meetings over a six-month period); Heffley v. U.S. Postal Serv., EEOC Appeal No. 07A40138 (Mar. 17, 2005) (no good faith effort where the agency, in response to complainant's request for an interpreter, failed to provide complainant with a qualified interpreter and instead provided her with non-qualified interpreters); Damiano v. U.S. Postal Serv., EEOC Request No. 05980311 (Feb. 26, 1999) (no good faith effort where the agency failed to provide complainant with the agreed upon accommodation of an interpreter to communicate with union stewards).
It is clear that, at least on four occasions, the Agency did not make Complainant's request for accommodation a priority and did not even attempt to obtain an interpreter. We find that the Agency's inaction on those occasions do not qualify as an attempt to make a reasonable accommodation. We note that the Agency provided Complainant with an interpreter on 11 occasions during the same time period. We emphasize, however, that an agency's duty to provide reasonable accommodation is ongoing. See Reasonable Accommodation Guidance, Question 32. Accordingly, we find that the Agency is liable for compensatory damages in connection with its failure to provide Complainant with a reasonable accommodation on November 3, 2009, January 19, 2010, February 18, 2010, and February 25, 2010
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision and REMAND the matter to the Agency to take remedial action in accordance with this decision and the Order below.
ORDER
Unless otherwise indicated, the Agency is ordered to take the following remedial action within sixty (60) days of the date this decision becomes final:
1. The Agency shall provide Complainant with an effective accommodation by providing a qualified interpreter during meetings to enable him to have equal access to information communicated in the workplace to non-disabled employees.
2. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.). The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 150 calendar days after this decision becomes final.
3. The Agency shall provide EEO training to the responsible management officials regarding their responsibilities under EEO laws.
4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
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 supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Alexandria, Virginia 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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
___2/14/13_______________
Date
1 We note that Complainant, who scheduled the meeting to explain a demonstration to a co-worker, elected to proceed with the meeting without an interpreter. ROI, at 187.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120114330
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114330