Robertv.Haggard, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0120060330 (E.E.O.C. Feb. 2, 2007)

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