0120060330
02-02-2007
Robert V. Haggard, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert V. Haggard, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200603301
Agency No. 4G-720-0152-04
DECISION
On October 6, 2005, complainant timely filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the September
20, 2005, final agency decision (FAD) 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether complainant was discriminated against based on his disability
(hearing impairment) when: (1) on August 4, 2004, he was not provided a
qualified interpreter during his weekly meeting at the Southside Station,
(2) on September 14, 2004, he was called into a staff meeting without
the accommodation of a qualified interpreter, and (3) he was not trained
on various jobs of the Computerized Forward Service (CFS).
BACKGROUND
At the time of events giving rise to this complaint, complainant was a
mark-up clerk in CFS with the Little Rock, Arkansas Post Office, Southside
Station. He filed an EEO complaint claiming, in relevant part, issues 1,
2 and 3. The agency dismissed the claims on procedural grounds, and
the Commission reversed. The agency then investigated them, and issued
a FAD finding no discrimination. According to the FAD, complainant
requested a decision without a hearing. He does not contest this.
Complainant is deaf, and cannot hear or speak. He utilizes a
teletypewriter (TTY) to converse on the telephone, and sign language
interpreters and written notes to converse with postal personnel. The FAD
found that complainant has a disability because he is substantially
limited in hearing. In Haggard v. United States Postal Service, EEOC
Appeal Nos. 01A12221 and 01A21876 (January 7, 2003), the Commission also
found complainant has a disability regarding hearing.
With regard to complainant's allegation that management failed to
provide him with interpretive services at the August 4, 2004 meeting,
the CFS supervisor, who was complainant's immediate supervisor, stated
that the meeting was an emergency about an employee being badly beaten on
the premises. On appeal, complainant disputes this. He submits a copy
of a police report showing the beating, which was part of an attempted
robbery, occurred on October 12, 2004. The record also indicates that,
during EEO counseling on this complaint, the counselor interviewed the
August 4, 2004 meeting presenters and a participant, and reported that
the meeting regarded workplace behavioral issues of some people in the
CFS unit trying to start trouble and possibly delay mail. The Postal
Inspector and a Workplace Intervention Analyst were the presenters at
the meeting.
Stating that the above meeting was a safety emergency, complainant's
supervisor stated that she made a judgment call to utilize complainant's
co-worker (Co-worker 1) to give sign language "interpretive services"
at the meeting. Co-worker 1 stated that she is able to finger spell
in sign and knows several signs because she has an aunt who is deaf.
In the past, Co-worker 1 has signed to complainant to let him know
changes in work or when offering to pick up breakfast. She states that
in these contexts complainant demonstrated that he understood her signs
by, for example, making the work changes.
Complainant stated that before the August 4, 2004, meeting, Co-worker
1 never attempted to interpret at a training or meeting, but signed
to him in short, casual conversations. He stated that the agency has
provided qualified/certified sign language interpreters at meetings,
that there have been settlement agreements and EEOC orders regarding
accommodating him, but problems occur from time to time.
Co-worker 1 opined that complainant understood her "interpretive services"
at the meeting and did not advise her that he was unable to understand.
Instead, according to Co-worker 1, complainant said there that he
would not listen to her because she was not a certified sign language
interpreter, and she notified management of this. Complainant countered
that he was unable to understand the communications at the meeting.
He wrote that he tried to tell his supervisor during the meeting that it
should not go forward without a certified interpreter, but the supervisor
declined. After the meeting, complainant told his supervisor that he
wanted a certified interpreter for the meeting.
Similarly, the supervisor stated the September 14, 2004 meeting was an
emergency which had to be done immediately for the safety of employees,
and she decided to use Co-worker 1 to provide "interpretive services".
She did not state the nature of the emergency. Complainant's second
level supervisor affirmed that she was not responsible for making
the decision to utilize Co-worker 1 to sign at the two meetings, and
she had not asked her to provide interpretive services prior to this.
The counselor's report indicates she was detailed to another facility
during part or all this time.
In regard to the August 4, 2004 and September 14, 2004 meetings, the
supervisor stated complainant did not advise her that Co-worker 1's
"interpretive services" were unacceptable. On appeal, complainant
states that while the investigator did not gather information on what
the two meetings were about, he does not believe they were emergency
safety meetings.
In Haggard v. United States Postal Service, EEOC Appeal Nos. 01A12221
and 01A21876 (January 7, 2003), the Commission found that the agency
discriminated against complainant when it failed to provide him a
qualified interpreter at a safety meeting, did not permit him to attend,
but instead had him and other hearing impaired employees attend a make up
safety meeting. It ruled that 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.
It ordered the agency to provide complainant and all other hearing
impaired employees who can sign, with a qualified interpreter at all
work related activities and meetings, whether or not s/he asks for
an interpreter. It ordered the agency to retain, at all times, the
services of qualified interpreters as needed in order to fully meet this
reasonable accommodation obligation.
Regarding claim 3, complainant claimed that he was not trained on various
jobs in the CFS unit because of his hearing impairment. Prior to the
appeal he did not identify any tasks, and complainant's supervisor stated
she was not aware of them. Complainant's second level supervisor stated
complainant received similar training to other clerks in CFS.
ANALYSIS AND FINDINGS
Under the Commission's regulations, an agency is required to make
reasonable accommodation to 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.
It is uncontested that complainant, who is deaf and cannot speak, is an
individual with a disability. The FAD found that he is an individual
with a disability regarding hearing, and the Commission has previously
found such. It is also uncontested that he is qualified individual
with a disability. The FAD found this, and the finding is supported by
the record.
The Commission has held that for a severely hearing impaired qualified
employee with a disability 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). The interpreter
must be "qualified," not "certified." Feris, EEOC Request No. 05950936,
footnote 1; Haggard, supra., 29 C.F.R. � 1630.2(o)(2)(ii).
The FAD found that the agency provided complainant with a qualified
sign language interpreter for the August 4, 2004 and September 14,
2004 meetings. We disagree. Complainant's contention that he did
not understand the communications at the meetings is supported by a
preponderance of the evidence. Co-worker 1 stated that she is able
to finger spell sign and knows several signs because she has an aunt
who is deaf. Based on this evidence, it is more probable than not that
Co-worker 1 was not a qualified interpreter. Even assuming Co-worker 1
could communicate with complainant with her limited signing ability in a
casual one-on-one setting, this does not establish that she was qualified
to provide interpretive services in a group meeting setting. In Marcum
v. United States Postal Service, EEOC Appeal No. 01892554 (January 22,
1990), the Commission found that the husband of a deaf employee who
communicated with his co-worker wife using sign language was not a
qualified interpreter. As stated in the decision, the critical point
was whether the employee's husband was qualified to interpret. Such
interpretation would require the husband to translate or interpret the
employee's sign language (which she considered as her primary language)
to those who could not understand sign language, and to translate or
interpret the English language to the employee by using sign language.
The decision found that the fact that the employee and her husband could
communicate with one another did not necessarily mean that the spouse
was qualified to serve as an interpreter.
Complainant's supervisor also explained that she utilized Co-worker 1 as
an "interpreter" because the two meetings were emergencies. She stated
the August 4, 2004 meeting was an emergency regarding a severe beating of
an employee, but complainant submitted a police report on appeal showing
more likely than not that the severe beating occurred some two months
after the meeting. And the supervisor did not explain the nature of
the emergency of the September 14, 2004 meeting. While the August 4,
2004 meeting regarding employees making trouble by delaying mail was an
urgent matter, the record does not show that advanced arrangements could
not be made to secure an interpreter since it is likely arrangements
were made to secure the two presenters. In fact, one of the presenters
told the EEO counselor that it was the job of the supervisor to make
arrangements for an interpreter, and one should be provided at all
future meetings, suggesting the meeting time could have been adjusted.
Even if the meetings were emergencies scheduled with little notice,
no effort was made to contact a qualified interpreter.
Reasonable accommodation must be provided unless the agency can
demonstrate that the accommodation would impose an undue hardship on
the operations of its program. 29 C.F.R. � 1630.9(a). The agency
has not met its burden here. There is no evidence of any attempt by the
agency to contact a qualified interpreter for the meetings in question,
and the record does not show arrangements could not be made to cover
the meetings. Accordingly, the agency failed to reasonably accommodate
complaint regarding claims 1 and 2, violating the Rehabilitation Act.
Complainant also claims that the failure to provide certified/qualified
interpreter for the August 4, 2004 and September 14, 2004 meetings
violated EEOC orders. In Haggard v. United States Postal Service, EEOC
Request No. 05960262 (November 25, 1997), the Commission ordered the
agency to provide a certified interpreter to complainant at all training,
and that the term "training" be construed broadly to include, but not
be limited to, safety talks, discussions on work procedures, policies
or assignments, workshops, seminars, staff meetings and informational
meetings, whether long-notice or short notice. In light of the language
in Feris, supra., 29 C.F.R. � 1630.2(o)(2)(ii), and the use of the term
qualified in Haggard, EEOC Appeal No. 01A12221 and 01A21876, we construe
the order in EEOC Request No. 05960262 to mean a qualified interpreter
at such events is required. The orders in the Haggard decisions above
simply require the agency to reasonably accommodate complainant in the
provision of qualified interpretation services, something which it has
a continuing obligation to do under the Rehabilitation Act. Hence,
in violating the Rehabilitation Act, the agency also violated the above
orders.2
Regarding claim 3, complainant has not shown discrimination. Prior to
the appeal, he did not identify the tasks on which he allegedly was not
trained, and complainant's second level supervisor stated complainant
received similar training to other clerks in CFS.
Regarding the remedy for discrimination, complainant did not request
compensatory damages. Accordingly, equitable remedies will be ordered.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, the FAD
finding of no discrimination on issues 1 and 2 is reversed, and disability
discrimination is found. The FAD finding of no discrimination on claim
3 is affirmed.
ORDER
The agency is ordered to take the following remedial actions:
1. Provide complainant with qualified interpretation at safety talks,
discussions on work procedures, policies or assignments,3 and at any
and every crucial time in his employment career, whether or not he asks
for an interpreter. The agency is ordered to retain, at all times,
the services of qualified interpretation as needed in order to fully
meet this reasonable accommodation obligation. This includes making
arrangements for interpretive services to cover emergencies.
2. Provide the individual identified herein as complainant's immediate
CFS supervisor, regardless of where she now works in the agency,
with training regarding the agency's responsibilities under the
Rehabilitation Act to provide qualified interpretive services for deaf
and hard of hearing employees as a reasonable accommodation, and how to
secure them. The training should explain what is meant by "qualified"
interpretive services, and cover when they must be provided.
3. Consider taking disciplinary action against the above individual.
The agency shall report its decision. 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.
The agency shall complete actions 2 and 3 above within 120 calendar days
after this decision becomes final.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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.
ATTORNEY'S FEES (H0900)
If complainant 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.
POSTING ORDER (G0900)
The agency is ordered to post at its ________________ Little Rock,
Arkansas Post Office, Southside Station 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.
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
February 2, 2007
__________________
Date
1 The Commission's October 25, 2005, letters to the parties acknowledging
the appeal identified it as docket number 01A60330. Due to changes in
our computerized records tracking system, the appeal docket number has
been restyled to 0120060330.
2 Complainant also avers that the agency violated a May 20, 1992
settlement agreement the parties entered into to provide a "certified"
interpreter at all future training. EEOC Request No. 05960262
broadly interpreted the definition of training in this settlement
agreement, as outlined above. In light of what is legally required
under the Rehabilitation Act, we construe the word "certified" to mean
qualified. Since the instant decision finds discrimination, we decline
to separately address the settlement agreement. The remedy for violating
the settlement agreement is no greater than the remedy pursuant to a
finding of discrimination. Given the age of the settlement agreement,
reinstating the underlying complaint that it closed is not appropriate,
and complainant does not request this.
3 This does not mean that a qualified interpreter needs to be provided
for a simple directive to complainant to move from one assignment to the
next, or to communicate a schedule change and the like. The record
reflects that simple instructions likely can be communicated to
complainant through handwritten notes. More technologically advanced
equipment, such as text messaging equipment, could possibly also be
used to communicate such simple directions. We are not ruling here on
alternative effective reasonable accommodations for communicating simple
instructions to complainant. Such methods, however, could be identified
by the agency engaging in the interactive process with complainant.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, Question Question 5 (October
17, 2002) (available at www.eeoc.gov.).
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0120060330
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120060330