Agency.

Equal Employment Opportunity CommissionJun 13, 2001
02980014 (E.E.O.C. Jun. 13, 2001)

02980014

06-13-2001

Agency.


Maria Vitale v. Social Security Administration

02980014

June 13, 2001

.

Maria Vitale,

Grievant,

v.

Larry G. Massanari,

Acting Commissioner,

Social Security Administration,

Agency.

Appeal No. 02980014

Agency No. CL-97-R-0017

DECISION

INTRODUCTION

Grievant timely initiated an appeal of a final decision by an arbitrator

(final decision) concerning her grievance of unlawful employment

discrimination on the basis of disability (profound deafness) in violation

of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq. For the reasons stated herein, the arbitrator's final decision

is reversed.

ISSUE PRESENTED

The issue on appeal is whether grievant has established that the agency

discriminated against her on the above-referenced basis when it failed to

provide her an accommodation for her disability, which would have allowed

her to be selected for a Service Representative (Svce Rep), GS-8 position.

BACKGROUND

Grievant is profoundly deaf and has been so since birth. She was

employed as a Tele-service Representative (TS Rep), GS-8, at a state of

Washington facility of the agency.<1> Grievant began her TS Rep position

in 1993 and as such, she provided a full range of customer service

assistance to hearing impaired individuals who called the agency on a

toll free telephone number and communicated through a Telecommunication

Device for the Deaf (TDD). In 1993, due to personal problems, grievant

requested a �hardship transfer�<2> from her TS Rep position in Washington

state to the Chicago region, which included the Cincinnati, Ohio area

(grievant's �home town�). The agency did not respond to grievant's

initial request so she resubmitted it, again without response. In 1996,

grievant discovered that the Chicago region had several vacant Svce Rep,

GS-8 positions so she once again requested a �hardship transfer.� Due

to grievant's personal circumstances and in anticipation of receiving

one of the vacant positions, grievant relocated to Ohio. She was on

leave without pay for several months and then accepted a �hardship

transfer� to a clerical, GS-5 position in a Cincinnati, Ohio facility

of the agency. Grievant, believing she was a victim of discrimination,

filed a grievance under the negotiated grievance procedure established

by her agency and her representative union. Grievant, in her grievance,

alleged that the agency discriminated against her based on disability

when it failed to accommodate her disability for a �hardship transfer�

to a Svce Rep position.

The agency stated that grievant was not accommodated and thus she was

not placed in the Svce Rep position because she could not perform an

essential function of the position, i.e., face-to-face interviewing.

Specifically, the agency stated that grievant would need a full-time

sign language interpreter (interpreter) to successfully perform the

above-stated essential function because (1) claimant interviews are

conducted on a walk-in basis, (2) the office tries to conduct claimant

interviews as quickly as possible because of heavy demand and expectations

by the public, and (3) many claimants are limited by either physical

impairment, education, economics or language, which could further

complicate the interview process. The agency indicated that it does not

hire one-on-one<3> full-time interpreters because it is very costly<4>

and can be disruptive to the office, e.g., if the interpreter takes

unscheduled leave the office would have to make significant adjustments

to allow a deaf employee to perform his/her work on that particular day

or days. The agency stated further that it researched the possibility

of connecting a TDD to the Cincinnati office, which would allow grievant

to assist with nationwide calls from hearing impaired claimants, but

was told the plan was not feasible in terms of good customer service.

The grievance was not resolved under the negotiated grievance

procedure and thus, was assigned to a neutral Arbitrator. A hearing

was held and the Arbitrator concluded that grievant could not perform

the essential functions of the position and that the provision of a

full-time interpreter by the agency was not a reasonable accommodation.

This appeal by grievant followed.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.401(d), �[a] grievant may appeal the

final decision of the agency, the arbitrator or the Federal Labor

Relations Authority (FLRA) on the grievance when an issue of employment

discrimination was raised in a negotiated grievance procedure that

permits such issues to be raised.�

Grievant is profoundly deaf and the agency does not dispute that she

is a person with a disability. 29 C.F.R. � 1630.2(g). The Commission

finds that because grievant would have been able to perform the essential

functions of the position at issue herein with accommodation, she is a

qualified individual with a disability. 29 C.F.R. � 1630.2(m).

The only question remaining is whether the agency met its legal

obligation under the Rehabilitation Act to reasonably accommodate

grievant.<5> Grievant requested either a full-time or a part-time<6>

interpreter or job restructuring to facilitate her �hardship transfer�

to a Svce Rep, GS-8 position. Rather than provide the grievant with

her requested accommodations, the agency offered and grievant accepted,

out of necessity, a clerical, GS-5 position. Unless to do so would

impose an undue hardship, the agency was obligated to provide grievant a

full-time or part-time interpreter or to provide some other effective

reasonable accommodation. See Enforcement Guidance. The agency,

however, was not required by regulation to restructure the Svce

Rep job by reallocating an essential function, such as face-to-face

interviewing. See 29 C.F.R. app. � 1630.2(o). The agency stated that

the above-cited accommodations would impose an undue hardship because they

were economically unfeasible. However, the agency did not provide any

detailed data to support its contention that such an accommodation would

be an undue hardship, but instead made only general conclusory statements

about the associated economic hardship. Considering the overall size of

the agency, which during the period at issue was approximately 60,000

employees in over 1300 nationwide facilities; the fact that a profoundly

deaf claims representative in the agency's Washington, DC field office

had an interpreter for 35 � hours per week; and the intent of Congress

that the Federal government undertake measures to reasonably accommodate

that would involve more than a de minimis cost<7>; we find that the cost

of hiring either a full-time or part-time interpreter for grievant would

not be an undue hardship. Accordingly, the agency has failed to meet

its obligation to reasonably accommodate grievant's disability.

CONCLUSION

After a careful review of the record, including grievant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we REVERSE the arbitrator's finding of no

discrimination based on disability. The agency is instructed to comply

with the Order as set forth below.

ORDER

The agency is ORDERED to take the following remedial action:

(1) Within thirty (30) calendar days of the date this decision

becomes final, the agency shall offer grievant a full-time, Service

Representative, GS-8 position or a substantially equivalent position at

its Cincinnati, Ohio facility. Grievant shall have thirty (30) calendar

days, from receipt of the agency's offer, to accept or reject.

(2) Regardless of whether grievant accepts or rejects the offered

position, the agency shall determine the appropriate amount of back pay

with interest and other benefits, e.g., health insurance, retirement,

and leave, due grievant, pursuant to 29 C.F.R. � 1614.501, less any

appropriate offsets, no later than sixty (60) calendar days after the date

this decision becomes final. The time period for purposes of back pay

shall be from the effective date of the denial of grievant's 1996 request

for a �hardship transfer� until the last day of the 30-day period during

which she can accept or reject the agency's offer or the effective date of

grievant's reinstatement to the offered position, whichever comes first.

The grievant shall cooperate in the agency's efforts to compute the

amount of back pay and benefits due, and shall provide all relevant

information requested by the agency. If there is a dispute regarding

the exact amount of back pay and/or benefits, the agency shall issue

a check to the grievant for the undisputed amount within sixty (60)

calendar days of the date the agency determines the amount it believes

to be due. The grievant may petition for enforcement or clarification

of the amount in dispute. The petition for enforcement or clarification

must be filed with the Compliance Officer, at the address referenced in

the statement entitled �Implementation of the Commmission's Decision.�

(3) The issue of compensatory damages is REMANDED to the agency to,

within sixty (60) calendar days of the date the Commission's decision

becomes final, gather all evidence relevant to grievant's entitlement

to compensatory damages. The grievant shall cooperate in the agency's

efforts to compute the amount of compensatory damages due, and shall

provide all relevant information requested by the agency. The agency,

thereafter, shall issue a final action on the issue of compensatory

damages in accordance with 29 C.F.R. � 1614.110(b).

(4) The agency shall post a notice of the finding of discrimination in

accordance with the paragraph below entitled, �Posting Order.�

(5) The agency shall conduct EEO training for the responsible management

officials cited in the grievance at issue herein. Such training shall

include, but not be limited to, training on the agency's obligations

toward its disabled employees and applicants for employment.

(6) The agency is further directed to submit a report of compliance, as

provided in the paragraph entitled �Implementation of the Commission's

Decision.� The report shall include a copy of the letter offering

grievant a position as described in �Order� paragraph (1) as well as

supporting documentation of the agency's calculation of back pay and

other benefits due grievant.

POSTING ORDER (G0900)

The agency is ordered to post at its Cincinnati, Ohio 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 (H0900)

If grievant 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 grievant. If the agency does not comply with the Commission's order,

the grievant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The grievant 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 grievant 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 grievant 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 (M0900)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant 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).

GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

June 13, 2001

__________________

Date

1Grievant worked in a unit consisting of deaf employees.

2Based on the record, a �hardship transfer� is movement to another

position due to difficulties experienced by the employee, typically in

his/her personal life.

3The agency stated that it hires full-time interpreters only to assist

a group of hearing impaired or deaf employees.

4Based on the record, interpreters are generally hired for a full-time or

part-time position at the GS-9 level or contracted with for approximately

fifty dollars per hour. A representative for the agency's Office of

Civil Rights and Equal Opportunity, which was consulted by the agency

about grievant's request for accommodation, stated that it is difficult

to find interpreters who are willing to accept full-time employment

because of the associated pay.

5�Reasonable accommodation� describes modifications to the manner under

which a position held is customarily performed that enables a qualified

individual with a disability to perform the essential functions of

his/her position. Enforcement Guidance: Reasonable Accommodation

and Undue Hardship under the Americans with Disabilities Act (1999)

(Enforcement Guidance).

6Grievant stated that after considering her morning, lunch, and afternoon

breaks and time set aside for administrative work, she would only require

an interpreter for approximately 24 hours per week.

7Feris v. Environmental Protection Agency, EEOC Request No. 05950936

(July 19, 1996), affirming EEOC Appeal No. 01934828.