01990458
10-13-1999
Albert I. Yuni, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Albert I. Yuni v. Small Business Administration
01990458
October 13, 1999
Albert I. Yuni, )
Appellant, )
) Appeal No. 01990458
v. ) Agency No. 12-91-291
) Hearing No. 100-97-7542X
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
______________________________ )
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act
(ADEA) of 1967, as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
Appellant alleges discrimination based upon his race (white); age (then
70); and disability (heart condition) when:
He received a letter, dated May 21, 1991, which falsely documented his
failure to process controlled correspondence assignments in a timely
manner;
On April 24, 1991, at 3:40 p.m., he received an assignment which was due
on April 26, 1991, at 11:00 a.m. which required him to read and comment
on a 164-page report (NAPA Report) in addition to other ongoing work<1>;
On June 11, 1991, he was informed by his second-line supervisor (S2)
(Black, female, DOB 5/13/58, no disability) that he would be charged
with sick leave if he went to the health unit to rest<2>;
On June 13, 1991, S2 requested that he provide "additional medical
documentation/use of sick leave, and other "physician's order" although
there was one in appellant's file<3>;
On July 1, 1991, he met with his third-line supervisor (S3) (white,
female, DOB 10/19/49, no disability) who told him that he would be
charged with sick leave and, in addition, gave him a paper with additional
requirements (i.e. a form seeking a narrative description of the history
of the specific medical conditions and other conditions)<4>;
He received an unacceptable interim performance rating dated May 3,
1991; and
He was constructively discharged when he retired in December, 1992.<5>
The appeal is accepted in accordance with EEOC Order No. 960.001.
On December 5, 1991, appellant filed a formal complaint alleging
discrimination as referenced above. Appellant's complaint was accepted
for processing. Following an investigation, appellant requested a hearing
before an EEOC Administrative Judge (AJ), who concluded that summary
judgment was appropriate in favor of the Agency. Appellant appealed the
Final Agency Decision (FAD). In a prior decision, we vacated the FAD and
remanded the matter back to the agency for a supplemental investigation,
including an investigation on the constructive discharge allegation.
Following the supplemental investigation, a hearing commenced in August,
1997 and concluded in January, 1998.
Thereafter, on July 8, 1998, the AJ rendered her recommended decision
finding that the agency discriminated against appellant when it
sought overly broad medical information, and, subsequently failed to
accommodate him. The AJ recommended a remedy with respect to her findings
of discrimination. However, the AJ also found that the evidence did not
support a finding of discrimination with respect to all other allegations.
The agency subsequently adopted the AJ's recommended decision and remedy
in its entirety. It is this agency decision which the appellant now
appeals.<6>
Appellant, a Procurement Analyst, GS-1101-14, was assigned to the
Division of Program Development (DPD) Minority Small Business and Capital
Ownership Development Office (MSB) in March, 1991. From March through
June, 1991, S2 was appellant's second-line supervisor. S1 (Black, male,
DOB 8/1/52, no disability) was appellant's immediate supervisor during the
relevant period. S3 was the Deputy Associate Administrator for Programs
and appellant's third-line supervisor. After S2 left the agency, S1 and
S3 became appellant's first and second-line supervisors, respectively.
AJ'S FINDINGS AND CONCLUSIONS
DENIAL OF ACCOMMODATION
As a threshold matter, the AJ determined that appellant was a qualified
individual with a disability within the meaning of the Rehabilitation
Act. Specifically, the AJ noted that the record included evidence that
appellant was diagnosed by a physician with heart disease which caused
him to experience, inter alia, frequent exhaustion, and chest pains.
His doctor recommended that appellant rest for one-hour each day and to
curtail his recreation and other physical activities. The AJ also found
appellant qualified because, during the relevant period, he received
minimally successful or fully satisfactory ratings for most of the
duties on his annual performance evaluations and was not disciplined
for performance issues.
The record indicates that S2 became aware of appellant's medical condition
(heart disease) and request for accommodation when she discovered,
sometime in the spring of 1991, that he was going to the nurse to take
rest breaks during the day. S2 learned from the nurse that appellant
had a doctor's certificate advising appellant to take a one-hour rest
every day. This medical certificate expired on May 8, 1991. S2 was
concerned that appellant was taking breaks without using leave and
sought guidance from the Personnel Office. A personnel officer (PO)
(Black, female, DOB 2/19/58, no disability) advised S2 to obtain current
medical documentation from appellant to support his rest request and that
he be charged sick leave during the time that he spent resting each day.
The AJ determined that the agency failed to meet its obligation under
the Rehabilitation Act to engage in the interactive dialogue necessary to
adequately address accommodation requests and to explain in any meaningful
way why it needed medical documentation from appellant. The AJ also
found that management officials threatened to charge appellant leave
if he again visited the nurses station. The AJ further found that the
agency's conduct ultimately forced appellant to assume the burden of
providing his own accommodation.
According to the AJ, the evidence established the following. PO drafted a
memorandum seeking from appellant broad medical information and extensive
documentation. S2 did not initially give appellant PO's memorandum and
requested that appellant simply provide an updated medical certificate.
After appellant provided an updated medical certificate, PO and S3 seemed
to badger appellant about providing more medical documentation and he
was warned that he would be charged leave whenever he visited the nurse.
At no time did any agency official explain to appellant the accommodation
process and his obligations to provide medical documentation so that
the agency might accommodate him.
The AJ found the first two requests posed by PO in her memorandum
unlawfully broad. The first two requests included the history of
appellant's medical condition and clinical findings of the most recent
medical evaluation, including diagnosis, prognosis and plans for future
treatment. The AJ noted that lawful medical questions are limited to
the nature of the employee's medical condition and how that condition
limits the employee's abilities to perform the essential functions
of his job. The AJ also found that the updated medical certificate
adequately addressed the necessary and relevant issues pertinent to a
request for a reasonable accommodation.
In addition, the AJ found the tone of PO's memorandum and testimony at the
hearing hostile and contemptuous; demonstrating a lack of understanding of
the agency's obligations toward disabled employees and the accommodation
process. The AJ also noted that appellant strongly objected to taking
sick leave when he went to the nurse's station, however, there were no
discussions of alternatives to taking sick leave, such as a flexible
schedule, between appellant and his supervisors.<7> Accordingly, the AJ
found that the agency discriminated against appellant when it failed to
accommodate him and forced him to provide his own accommodation.
DISPARATE TREATMENT CLAIMS
The Request for Medical Documentation (Allegation Nos. 4 and 5)
The AJ found that appellant was requested to provide medical documentation
to justify his rest periods when other employees outside his protected
classes, who needed accommodations due to illnesses, pregnancy, or
disabilities, were not asked to submit such documentation. Specifically,
the AJ noted, inter alia, an employee (C1) (Black) who was allowed time
off and a part-time schedule without providing any medical documentation.
Accordingly, the AJ found compelling evidence that appellant was
discriminated against because of his race with regard to the request
for medical documentation and subsequent failure to accommodate him,
as discussed herein above.
Other Claims of Disparate Treatment (Allegation Nos. 1, 2, 3, and 6)
The AJ found that all other claims of disparate treatment failed to state
a claim. According to the AJ, there was no evidence that allegation
Nos. 1, 2, 3, and 6 were accompanied by some concrete adverse action.
With respect to Allegation No. 1, appellant received a letter from
his supervisor informing him that he failed to timely respond to five
congressional letters. It is undisputed that appellant did not receive
any disciplinary action as a result of the letter.
With respect to Allegation No. 2, the AJ noted that while appellant was
not expressly granted an extension, his assignment was, nevertheless,
late. However, appellant was not subjected to disciplinary action
because of his failure to comply with the shorter deadline.
In Allegation No. 3, appellant was warned that he would be charged
sick leave if he went to the health unit to rest. As indicated above,
the agency's action in this regard was evidence on which the AJ relied,
in part, to find that it failed to reasonably accommodate appellant.
However, by itself, this action does not render appellant aggrieved, since
he did not suffer any concrete adverse action as a result of the warning.
With respect to Allegation No. 6, appellant argues that he received an
unacceptable interim performance rating. However, appellant failed to
show how this non-final, non-permanent performance review caused him
to suffer some personal loss or harm with respect to a term, condition,
or privilege of employment.
The AJ also found that these allegations failed to constitute harassment
since the incidents were neither severe nor pervasive. The AJ noted that
the record is conclusive that the hostile exchanges between appellant
and his supervisors on these issues were primarily based upon the
disagreement between them regarding the appropriate role of DPD with
respect to minority contracting issues.
Constructive Discharge Claim (Allegation No. 7)
The AJ found that the evidence does not support a finding that, at
the time he decided to retire, appellant's working conditions were
intolerable because of discrimination. Specifically, the AJ noted that
appellant argued that he was subjected to discriminatory treatment by
various agency officials over the course of so many years that he could
not work for the agency. The alleged discriminatory treatment included
incidents discussed herein, as well as other actions which allegedly
occurred in the early 1980s, such as the reclassification of appellant's
position, and the failure to promote appellant. Appellant alleged also
that up until the time of his retirement, his work product was frequently
revised and rewritten in a humiliating and degrading manner. In addition,
appellant alleges that he was excluded from staff meetings, excluded from
acting supervisory positions, and denied training. Lastly, appellant
cited incidents where he and S1 disagreed regarding the propriety of
retaining contracting issues within the 8(a) program.
The AJ found that the evidence showed that constant revisions
of appellant's work stemmed from a basic disagreement among S1 and
appellant regarding work priorities. While appellant's pride was hurt
when he was excluded from certain staff meetings, the evidence showed
that the meetings frequently concerned issues in which appellant had no
involvement. While appellant was not appointed to act in S1's absence,
the AJ found no evidence of discriminatory animus behind such conduct.
Lastly, the record showed that appellant never asked for training and
did not know of any other staff who received training. Accordingly,
the AJ determined that the totality of the evidence did not support a
finding that appellant was subjected to intolerable working conditions
at the time he decided to retire. Rather, the AJ found that appellant
continued to have disagreements with management about priorities with
respect to the 8(a) program.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the AJ accurately set forth the
relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. We note that appellant failed to raise
any specific contentions on appeal, but rather simply reiterates his
original allegations, which we find were fully considered by the AJ.
Accordingly, we discern no basis upon which to disturb the AJ's
recommended findings and conclusions and hereby AFFIRM the agency's
final decision. The agency shall comply with the remedy proposed in
the AJ's recommended findings and conclusions, as restated below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall refrain from issuing over-broad requests for medical
information to employees. Requests for information about medical
conditions must be limited as set forth in EEOC Regulations 29 C.F.R. �
1630.14.
2. The agency shall keep all medical information it receives about
employees confidential pursuant to 29 C.F.R. � 1630.14. Medical
documentation shall not be kept with employee time and attendance
records.
3. The agency shall take steps to ensure that all personnel specialists,
including PO, are trained on the federal anti-discrimination statutes and,
in particular, on the applicable requirements regarding the agency's
obligations to individuals with disabilities, requests for reasonable
accommodation, and request for medical documentation.
4. The agency shall take steps to ensure that all supervisors and
managers are aware of their rights and responsibilities to employees and
individuals with disabilities and the requirements of the Rehabilitation
Act of 1973, as amended by the Americans with Disabilities Act 42 USCS �
12101 et. seq. and applicable EEOC regulations that govern their conduct
with respect to covered individuals.
5. The agency shall take steps to ensure that all supervisors and
managers are aware of their rights and responsibilities to create a
work environment free from discrimination as required by the federal
anti-discrimination statutes and EEOC regulations.
6. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at the United States Small Business
Administration, Division of Program Development Minority Small Business
and Capital Ownership Development Office, Washington, D.C. (SBA) 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 (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
10/13/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ____________________________
which found that a violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., has
occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Small Business Administration, Division of Program
Development Minority Small Business and Capital Ownership Development
Office, Washington, D.C. (SBA) supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The SBA has been found to have discriminated against an employee on
account of his race and disability when it sought overly broad medical
information and subsequently failed to accommodate him. The SBA has
been ordered to take corrective action in the form of training for the
responsible official(s). The SBA will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The SBA will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
federal equal employment opportunity law.
Date Posted: _____________________ ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1Appellant alleges only race and age as bases for this allegation.
2Appellant alleges only age as a basis of this allegation.
3Appellant alleges only race and age as bases for this allegation.
4Appellant alleges only race and age as bases for this allegation.
5Appellant never formally raised this issue in his EEO complaint, however,
the agency and the AJ both accepted and considered appellant's allegation
in their respective analyses. Accordingly, the Commission will consider
the allegation herein.
6Since appellant does not specify his contentions on appeal, but rather
states that he is appealing the "AJ's findings and conclusions and Final
Agency Decision," we have reviewed, and address herein, the AJ's findings
and conclusions in its entirety, which the FAD has adopted.
7The AJ did note, however, that if the agency engaged in good faith
efforts to determine an effective accommodation for appellant, charging
him sick leave may have been reasonable.