Albert Yuniv.Small Business Association 05A00329 August 15, 2000 . Albert Yuni, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionAug 15, 2000
05a00329 (E.E.O.C. Aug. 15, 2000)

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.