0120092478
02-15-2011
Vallire I. Scott, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Office of the Chief Financial Officer), Agency.
Vallire I. Scott,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120092478
Hearing No. 461-2009-00004X
Agency No. OCFO-2008-00174
DECISION
On May 19, 2009, Complainant filed an appeal with the Commission.
Complainant contends that the Agency failed to fully comply with its May
12, 2009 final order to implement the decision of an EEOC Administrative
Judge (AJ), who found discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and ordered relief. For the reasons that follow, we find
that the Agency has fully complied with its final order.
ISSUES PRESENTED
1. Whether the Agency complied with its final order requiring it to
expunge from its files and records any disciplinary references or imposed
discipline connected with Complainant's failure to open mail or attend
training.
2. Whether the Agency complied with its order requiring it to restore
to Complainant part of her lost wages and benefits from a three-day
suspension.
BACKGROUND
At the time of events at issue, Complainant worked as a Financial
Management Technician at the Agency's National Finance Center in New
Orleans, LA. One of Complainant's assigned duties was to open the mail
at the Agency's facility. But because the dust from opening the mail
aggravated her asthma and allergies, Complainant requested to be excused
from opening large packages as a reasonable accommodation. The Agency
denied her request.
On December 11, 2007, the Agency issued a letter of reprimand to
Complainant, charging her with discourteous conduct toward her first
level supervisor and failure to follow supervisory instructions. The
Agency listed six specifications to support its charges:
1. Complainant had loudly and disrespectfully accused her supervisor
of daily harassment during a meeting about errors in a time and attendance
sheet;
2. Complainant stared at her supervisor after the supervisor asked
Complainant if she remembered a mandatory training;
3. Complainant sent an email, accusing her supervisor of
harassment;
4. When her supervisor asked Complainant to assist someone in
opening the mail, Complainant loudly and rudely told her supervisor that
she could not open the mail;
5. Complainant failed to open the mail on her assigned day;
6. Complainant failed to turn in her individual retirement record
to her mentor before a previously specified time.
On February 7, 2008, the Agency issued a notice of a proposal to
suspend Complainant for three days for discourteous conduct toward her
section chief. To support its charge of discourteous conduct, the Agency
specified that Complainant had loudly called the section chief a racist
after he had asked an employee, who was speaking loudly in Complainant's
cubicle, to leave. In deciding to suspend Complainant for three days,
the Agency stated that it had considered her past disciplinary record,
i.e., the December 11, 2007 reprimand for discourteous conduct toward her
first level supervisor. The suspension went into effect from March 15,
2008 through March 17, 2008.
Complainant filed an EEO complaint, alleging that the Agency discriminated
against her on the bases of race (African-American), disability (asthma
and allergy), sex (female), and reprisal for prior protected EEO activity
when the Agency:
1. issued her a letter of proposed three-day suspension on February 7,
2008;
2. issued her a letter of reprimand on December 12, 2007;
3. denied her request for assignment of duties on December 4, 2007;
4. denied her request for leave, pursuant to the Family and Medical
Leave Act on December 4, 2007;
5. denied her request for reasonable accommodations and established a
deadline for her to provide medical documentation on November 13, 2007.
On March 31, 2009, an AJ found that the Agency failed to provide
Complainant with a reasonable accommodation for opening the Agency's
mail because she suffered from allergic and asthmatic reactions to
dust.1 The AJ determined that Complainant failed to show that the
Agency was motivated by discriminatory animus when it disciplined her
for insubordinate conduct. The AJ also found that Complainant failed
to establish discrimination on the basis of reprisal because her
supervisors were not aware of any prior EEO activity and her actions
did not constitute protected opposition.
The AJ ordered the Agency, in relevant part, to:
5. Expunge from its files and records any disciplinary reference to
Complainant's alleged failure to open the mail or to attend training,
and any discipline that was imposed in connection with those issues,
or otherwise stemming from her performance as affected by her asthma;
6. Restore to complainant any wages or benefits lost as a result of any
discipline described in item 5 above, including any wages or benefits
lost as a result of discipline that was made more severe in consideration
of the prior imposition of discipline described in item 5 above.
The Agency subsequently issued a final order on May 12, 2009, fully
adopting the AJ's decision.
After the Agency issued its final order, it replaced the December 11,
2007 letter of reprimand with a revised letter on June 2, 2009. The new
letter of reprimand retained the charges of discourteous conduct and
failure to follow supervisory instructions, and again listed incidents
(1), (3), and (6). But the new letter did not reference incidents (2),
(4), and (5). The new letter specified that it would be retained in
Complainant's official personnel folder for a period of up to two years
from the date of the original letter, December 11, 2007.
In a June 4, 2009 email, an Agency official decided not to change the
original three-day suspension because Complainant's official personnel
file still contained a letter of reprimand, even though it was a revised
version. On May 19, 2009, Complainant sent facsimiles to the Commission
and the Agency's EEO Director, informing them that the Agency had failed
to comply with its final order. In a June 22, 2009 letter, Complainant
elaborated that the Agency failed to expunge from its files and records
the letter of reprimand and an unspecified one-day suspension.
In response to Complainant's appeal, the Agency maintains that it has
complied with respect to the orders at issue. The Agency contends
that a letter of reprimand was still warranted based on the remaining
specified behavior that did not involve Complainant's opening of the mail
and attending training. Moreover, the Agency argues that it need not
restore lost wages or benefits resulting from the three-day suspension
because the three-day suspension was unrelated to the issues of having
Complainant open the mail and attend training.
CONTENTIONS ON APPEAL
On appeal, Complainant again maintains that the Agency did not comply
with its orders because it did not remove from her personnel files and
records the letter of reprimand and an unspecified one-day suspension.2
ANALYSIS AND FINDINGS
Under 29 C.F.R. � 1614.504, if a complainant believes that the agency
has failed to comply with the terms of a final action, the complainant
shall notify the EEO Director in writing of the alleged noncompliance
within thirty days of when the complainant knew or should have known
of the alleged noncompliance. The regulation provides that the agency
shall resolve the matter and respond to complainant in writing. If the
agency does not respond to the complainant or if the complainant is
not satisfied with the agency's attempt to resolve the matter, the
complainant may appeal to the Commission for a determination as to
whether the agency has complied with the final action. A complainant
may file such an appeal within 35 days after serving the agency with the
allegations of noncompliance but must file an appeal within 30 days of
receiving the agency's determination. At the outset, we note that the way
Complainant initially filed her appeal did not comply with EEOC Regulation
29 C.F.R. � 1614.504. However, because the Agency has responded to the
appeal on its merits, we will consider Complainant's appeal.
We find that the Agency has complied with provisions (5) and (6) of
the Order in its final action. There is no dispute that the letter
of reprimand was revised by letter dated June 22, 2009 and that all
references to Complainant's alleged failure to open mail or attend
training was expunged. Likewise, since the three day suspension would
still have been available to the Agency based on the remaining conduct
set forth in the revised letter of reprimand, i.e., discourteous conduct
to a section chief,3 we do not find that Complainant is entitled to any
restored wages or benefits. Contrary to Complainant's contentions on
appeal, the Agency was never required to completely remove the letter
of reprimand or to fully restore the wages and benefits that she lost
as a result of the three day suspension, the Agency was only required
to expunge and restore to the extent that it involved the issues where
discrimination was found.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the
Agency has complied with its final Order. See 29 C.F.R. � 1614.504(c).
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), 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 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
____2/15/11______________
Date
1 The AJ also determined that Complainant failed to prove that that the
Agency discriminated against her on the other bases.
2 The Commission assumes for purposes of this appeal that Complainant
meant the three-day suspension, effective from March 15 to 17, 2008.
3 The record includes the Agency's guide for disciplinary penalties.
Basic Department Personnel Manual, Chapter 751: Appendix A - USDA Guide
for Disciplinary Penalties, Report of Investigation (ROI), Ex. 28b.
The guide recommends that the penalty for a first offense of using
offensive or discourteous language can range from a letter of reprimand
to a fourteen-day suspension. And the penalty for a subsequent offense
can range from a five-day suspension to removal.
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0120092478
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092478