0120054201
02-23-2007
Robert M. Bruesewitz, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Robert M. Bruesewitz,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01200542011
Agency No. FWS04022
DECISION
Complainant appeals to the Commission from the agency's decision dated
April 29, 2005, finding no discrimination. In his complaint, dated
June 8, 2004, complainant, an Assistant Wetlands Manager, GS-12, at
the agency's Fish and Wildlife Services, Litchfield, Minnesota, alleged
discrimination based on age (DOB: 11/22/1950) and disability, when:
1. Beginning in January 2004, and continuing into the present time, he
has been subjected to discriminatory time and attendance requirements when
his requests for sick leave were denied by his supervisor. In addition,
he believes his supervisor is imposing stricter standards for the use
of sick leave on him than on other employees.
2. In January 2004, he was subjected to discriminatory disciplinary
action when his supervisor proposed a seven-day suspension and he was
subjected to discriminatory denial of a reasonable accommodation for
various physical effects caused by his disability.
3. On or about March 19, 2004, he was subjected to discriminatory terms
and conditions of employment when his supervisor imposed a new retroactive
performance plan.
After completion of the investigation of the complaint, the agency, upon
complainant's request, issued its final decision. The agency found no
discrimination.
The record indicates that on February 21, 2002, complainant was injured
in an on duty motor vehicle accident damaging his SI joint, rotator
cuff, nerve impingement to his cervical vertebrate, and disk bulges.
Complainant has been receiving medical treatment since that time.
Prior to the alleged incidents leading to claim 1, complainant was issued
a proposed 7-day suspension on January 23, 2004, for failure to pay a
valid debt in a timely manner, inappropriate use of a government-issued
MasterCard, and inappropriate conduct, which became final as described
in claim 2. Therein, complainant's supervisor specifically stated that
on January 9, 2004, during their conversation about complainant's credit
card delinquency, complainant made offensive and derogatory remarks, i.e.,
"fuckers," to the supervisor.
With regard to claim 1, complainant claimed that his physical therapy was
scheduled for 3 days a week and could not be done on consecutive days.
However, he provided no evidence to support his claims other than his
mere assertions. In fact, his physical therapist stated in his letter
dated February 2, 2004, that complainant had been seen up to two times
a week and that February 2, 2004, was the last scheduled and authorized
appointment. The record also contains the Rehab Services Record from
that therapist indicating complainant visits him once or twice a week.
For his leave request for the period of February 4 - 6, 2004, complainant
requested sick leave from 7:30 am - 12:20 pm for each day for "work
comp related sick leave" and annual leave from 12:30 pm - 4:30 pm
for the purpose of working on his appeal of the proposed suspension,
described above. The supervisor stated that he denied the leave
request because complainant failed to provide him with administratively
acceptable evidence for leave. Specifically, he stated that complainant's
anticipation that he would be sick did not constitute an acceptable reason
to grant sick leave and his request for leave to work on his response
to the misconduct action was not an acceptable reason to approve leave.
The record contains an undated letter written by complainant's supervisor
to complainant concerning complainant's absence without approval from
January 27, 2004, until February 4, 2004. Therein, the supervisor stated
that on January 27, 2004, complainant left work at approximately 12:30 pm
without informing him. The supervisor also stated that on January 28,
2004, he found complainant's Request for Leave or Approved Absence form
dated January 28, 2004, in the office indicating that complainant wished
to claim sick leave for the January 27, 2004 absence. The supervisor
further indicated that on the morning of January 28, 2004, he received
a voice mail message from complainant's wife that complainant had a
neurosurgery appointment and would not be in until a week from February 4,
2004, and that he would need to have annual and sick leave.
In that letter, the supervisor noted that the foregoing absences commenced
shortly after he advised complainant that it was not permissible for
him to use his work time to respond to matters concerning the proposed
disciplinary action against him. The supervisor also noted that the
station's Pesticide Use Proposals (PUPs) were due on January 31, 2004.
However, on January 27, 2004, complainant told the supervisor that he
had not "done much" on PUPs at that point. Complainant also told the
supervisor that if management could come to some kind of agreement on
a lesser disciplinary action, he could get them done. The supervisor
stated that due to complainant's unanticipated and unapproved absence,
described above, the PUPs would now need to be completed by someone else
and they were not completed by the due date. Based on the foregoing,
the supervisor stated that he was not inclined to approve annual leave
or sick leave in lieu of annual leave for complainant's absence from
January 28, 2004, until February 4, 2004, unless complainant provides
a medical certificate or other administratively acceptable evidence for
his absence/leave.
With regard to claim 2, complainant's second line supervisor stated that
it was his decision to issue a final decision to suspend complainant.
Specifically, he stated that the charges for complainant's inappropriate
use of the government card and his inappropriate conduct toward his
supervisor on January 9, 2004, were sustained. Management stated that
although complainant claimed that the side effects on his medication
caused his behavior on January 9, 2004, he provided no evidence to
support his claim.
With regard to claim 3, complainant's supervisor specifically denied
that the new performance plan at issue was retroactive. Rather, it
was effective on March 19, 2004, i.e., the date that it was issued
to complainant. The supervisor acknowledged the date on the plan was
October 1, 2003, but he explained that this date simply showed the
fiscal year rating period. The agency stated that the entire office,
and not just complainant, was affected by the new performance plans or
change in elements. The agency indicated that although its employees'
new plans carry a rating period of October 1, 2003 to September 30, 2004,
all had received progress reviews under the old plan. Complainant does
not contest the agency's foregoing statements.
Based on the foregoing, the Commission, assuming arguendo that complainant
had established a prima facie case of discrimination, finds that the
agency has articulated legitimate, nondiscriminatory reasons for the
alleged incidents. Furthermore, the Commission finds that complainant
was not denied a reasonable accommodation. Complainant has not shown
that he was required to work beyond any medical restriction or that
he provided adequate and sufficient information to justify leave as
an accommodation. It is noted that the Commission does not address in
this decision whether complainant is an individual with a disability.
Furthermore, we note that complainant has not challenged the agency's
earlier dismissal of his claim of retaliation (regarding the incidents
in claims 1 -3) for failure to state a claim.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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 23, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
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0120054201
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036