Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

Feb 27, 2013

0120110532 (E.E.O.C. Feb. 27, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.

Appeal No. 0120110532

Agency No. AMS-2009-01147

DECISION

On October 29, 2010, Complainant filed an appeal from the Agency’s September 30, 2010,
final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision finding discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Agricultural Commodity Grader, GS-11, at the Agency’s Rayville, Louisiana office.
Complainant was one of four full-time managers at the Rayville Office. Complainant’s
position requires him to supervise 20 to 30 seasonal employees as well as one of the office’s
two shifts during cotton classing season. Complainant’s first-level supervisor was the Area
Director (S1). During the relevant time S2 was the Associate Deputy Administrator, S3 was
the Assistant Area Director, and S4 was the Branch Chief.

Complainant filed an EEO complaint dated September 16, 2009, alleging that the Agency
discriminated against him on the basis of disability (alcoholism, bi-polar disorder, and clinical
depression) when:

1. On June 15, 2009, Complainant’s supervisor required him to provide documentation
on his medical diagnosis and medication;
2. On July 7, 2009, Complainant received a Letter of Reprimand for failing to follow
his supervisor's instructions;
3. On July 7, 2009, Complainant was issued a Leave Restriction Notice; and
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4. On August 11, 2009, and August 14, 2009, Complainant was placed on Absent
Without Leave (AWOL).1

The Agency conducted an investigation on Complainant’s complaint and on September 30,
2010, the Agency issued a final decision. In its decision, the Agency determined that
Complainant was disabled. With regard to issue (1), the Agency noted that Complainant
claimed that on June 15, 2009, S1 required him to provide documentation about his medical
diagnoses and medication. The Agency stated that as Complainant was asking for leave as a
reasonable accommodation for his disability, the Agency was permitted to seek medical
documentation for Complainant’s non-obvious impairments. The Agency noted that
Complainant failed to show that any similarly situated employees were treated more favorably
than Complainant.

The Agency noted that Complainant also alleged that management asked him which
medications he was taking. The Agency noted that Complainant had volunteered during a
conversation with S1 that certain medications were making him sleepy, and that S1 in turn
asked Complainant which medications were making Complainant sleepy.2

The Agency noted
that it had already been established that Complainant was disabled and that he had produced
medical documentation to that effect. The Agency found it was beyond the scope of the
Agency’s legitimate inquiry to ask which medications Complainant was taking. Thus, the
Agency found that by asking this question, Complainant’s rights under the Rehabilitation Act
were violated.
With regard to issue (2), the Agency noted that on July 7, 2010, Complainant was given a
Letter of Reprimand for failure to follow a supervisor’s instructions. The Agency noted the
incident occurred on June 8, 2009, when S3 asked Complainant to run a line. The Agency
noted that Complainant claimed that he was not directly told to run the line, but was told that
he “might have to” run a line. The Agency noted that the record confirmed that Complainant
was told three separate times to run the line and each time he refused. The Agency noted that
Complainant claimed that he was not given a chance to defend himself as the incident was not
discussed with him prior to the issuance of the Letter of Reprimand. The Agency found that
the issue of not discussing the incident with Complainant prior to the issuance of the Letter of
Reprimand, was not in itself discriminatory as the Letter of Reprimand was justified based on
Complainant’s repeated failure to follow S3’s order.

With regard to issue (3), the Agency noted that Complainant claimed that his use of leave was
warranted and that the Leave Restriction Notice was discriminatory. The Agency
acknowledged that Complainant provided appropriate medical documentation for most of his

1 Complainant also included a claim that management told several employees that he was on
drugs; however, he subsequently withdrew that claim during the investigation of his complaint.
2 The Agency noted that although Complainant claimed that the Branch Chief (S4) asked him
which medications he was taking, S1 acknowledged that he was the one that asked
Complainant which medications Complainant was taking.
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absences but that a number of instances of lateness and not calling in when running late
warranted the Leave Restriction Notice. The Agency noted that the record shows that there
were instances where Complainant would call in after the time he was to report to work and
would say that he would be in soon, and then he would call in later and say he had a doctor’s
appointment and would be in even later. The Agency noted that on these occasions,
Complainant would be charged sick leave for the time spent at the doctor’s appointment and
then charged AWOL for the lateness. The Agency noted Complainant presented no evidence
to rebut the Agency’s proffered explanation; nor did he present evidence of any employees
who were treated more favorably.

With regard to issue (4), the Agency noted that Complainant was charged 15 minutes of
AWOL on August 11, 2009, and one and one quarter hours of AWOL on August 14, 2009.
The Agency noted that Complainant claimed that on both occasions he overslept due to his
medications and claimed that he gave S1 a doctor’s note to that effect. The Agency stated that
the lateness on these dates violated the Leave Restriction Notice and thus, Complainant was
charged AWOL. With regard to the August 11, 2009 incident, the Agency noted that
Complainant later requested sick leave and it was granted. With regard to the August 14, 2009
incident, the Agency noted that Complainant was the only employee scheduled for duty that
day at the office.

The Agency recognized that Complainant had previously submitted a letter from a nurse
practitioner dated July 7, 2009, noting that a side effect of Complainant’s medication is
difficulty waking up in the morning.3

The Agency noted that the letter also stated that
Complainant’s medications had been adjusted to relieve some of these side effects.
The Agency noted that Complainant claimed he supplied S1 with a doctor’s letter explaining
the cited instances of tardiness. The Agency noted that S1 did not address whether
Complainant supplied such a letter; however, S2 stated that Complainant did not provide any
such documentation to management. Thus, the Agency found Complainant did not prove that
he supplied the alleged letter to the Agency. Moreover, the Agency found that the Agency’s
action in requiring medical documentation to excuse any additional absences as set forth in the
Leave Restriction Notice was not unreasonable. Additionally, the Agency noted that both S1
and S2 explained the “close-knit” nature of the office and the interdependence of managerial
responsibilities, making it necessary for Complainant, one of the four supervisors in the office,
to be at work as scheduled. Thus, the Agency found Complainant did not establish that he was
subjected to discrimination with regard to issue (4).

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29

3 Although the Agency’s final decision states the letter from the nurse practitioner was dated
July 17, 2009, the record reveals the letter was actually dated July 7, 2009.
0120110532

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C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

At the outset, we note that Complainant does not challenge the definition of the issues
addressed by the Agency. Complainant does not challenge the Agency’s finding of disability
discrimination regarding an impermissible medical inquiry. Complainant does not challenge
the remedy awarded by the Agency for the finding of discrimination. Complainant has not
challenged the findings of no discrimination. Finally, we note that Complainant has not
alleged noncompliance by the Agency with the remedies awarded. The Commission has the
discretion to review only those issues specifically raised in an appeal. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999).
Thus, we will only examine the finding of discrimination which we find proper. We shall order
the Agency to comply with the remedies it provided to Complainant in its final decision, as
slightly modified herein.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

ORDER

To the extent it has not already done so, the Agency shall take the following actions:

1. Within 30 days of the date this decision becomes final, the Agency shall give
Complainant a notice of his right to submit objective evidence (pursuant to the guidance
given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of his claim for compensatory damages within 60 days of the date
Complainant receives the Agency's notice. The Agency shall complete any
investigation on the claim for compensatory damages within 60 days of the date the
Agency receives Complainant's claim for compensatory damages. Thereafter, the
Agency shall process the claim in accordance with 29 C.F.R. § 1614.110.

2. Within 180 days of the date this decision becomes final, the Agency shall provide EEO
training to S1 regarding the Rehabilitation Act.

3. Within 60 days of the date this decision becomes final, the Agency shall consider taking
disciplinary action against S1 identified as being responsible for the discrimination
perpetrated against Complainant. The Commission does not consider training to be a
disciplinary action. The Agency shall report its decision to the Commission and specify
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what, if any, action was taken. If the Agency decides not to take disciplinary action,
then it shall set forth the reasons for its decision not to impose discipline.

The Agency is further directed to submit a report of compliance as provided in the paragraph
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation of the Agency’s actions in accordance with this Order.

POSTING ORDER (G0610)

The Agency is ordered to post at its Rayville Louisiana facility 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 (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he 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

(K0610)
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 77960, Washington, DC
20013. 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
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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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(S0610)
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
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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 27, 2013
Date