05a00329
08-15-2000
Albert Yuni v. Small Business Association 05A00329 August 15, 2000 . Albert Yuni, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Albert Yuni v. Small Business Association
05A00329
August 15, 2000
.
Albert Yuni,
Complainant,
v.
Aida Alvarez,
Administrator,
Small Business Administration,
Agency.
Request No. 05A00329
Appeal No. 01990458
Agency No. 12-91-291
Hearing No. 100-97-7542
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Albert
Yuni v. Small Business Association, EEOC Appeal No. 01990458 (December
9, 1999).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request.<2> The decision
in EEOC Appeal No. 01990458 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
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. � 1614.203(e)(4) and 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 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."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
August 15, 2000
__________________
Date
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 Association, Division of Program
Development Minority Small Business/Capitol 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: _________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We find that the appellate decision correctly affirmed the AJ's
finding that complainant is not entitled to compensatory damages since
the conduct found to be discriminatory occurred prior to the enactment
of the Civil Rights Act of 1991 on November 21, 1991. See Landraf v. USI
Film Products, 511 U.S. 244 (1994). We also disagree with complainant's
assertion that his constructive discharge allegation and request for a
retroactive promotion and backpay were �totally ignored.� We find the
record exhaustively developed. We note that the AJ conducted a 10-day
hearing and issued a well-reasoned decision supported by substantial
evidence that complainant did not prove his constructive discharge
claim. Accordingly, we do not find a basis for reconsideration of the
Commission's decision to affirm the AJ.