Robert M. Bruesewitz, Complainant,v.Dirk Kempthorne, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120054201 (E.E.O.C. Feb. 23, 2007)

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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2

0120054201

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036