Kristopher M.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0120150210 (E.E.O.C. Apr. 20, 2017)

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

Kristopher M.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120150210

Agency No. HS-FEMA-21308-2012

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated October 8,
2014, finding no discrimination with regard to his 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, we AFFIRM the
Agency’s final decision finding no discrimination.

BACKGROUND

In his complaint, Complainant alleged discrimination based on disability (mental depression)
when:

(1) His supervisor did not make arrangements to accommodate his disability after he
requested reasonable accommodations; and

(2) On October 19, 2011, his supervisor issued him a notice of discontinuation of
employment during his probationary period.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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After completion of the investigation of the complaint, Complainant requested a final Agency
decision without hearing. The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut.

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
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (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").

After a review of the record, assuming arguendo that Complainant had established a prima
facie case of discrimination, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for the alleged incidents. The record indicates that on October 24,
2010, Complainant was hired by the Agency, subject to a one-year probationary period, as a
Management Analyst, GS-12, Mission Support Bureau, Support Services & Facilities
Management Division, in Washington D.C. Complainant indicated that since age 12, he had
issues with patella dislocations which had gotten worse causing mobility issues; he was in
constant pain; he had a problem with stairs and lifting; and he suffered depression as a result of
his wife’s miscarriage in July, 2011, but his depression was almost gone by February, 2012.
Complainant acknowledged that he had no work restrictions due to his conditions during the
relevant period at issue.

The supervisor denied that Complainant requested any reasonable accommodations or that the
supervisor was aware of Complainant’s medical conditions during the relevant period at issue.
We note that Complainant indicated that “[his] request to use leave was [his] request for a
reasonable accommodation.” However, Complainant does not provide any evidence showing
that he requested a reasonable accommodation at issue other than requesting leave. There is no
indication in the record that the supervisor knew or should have suspected that Complainant’s
requests for leave were somehow connected to his claimed disability of depression. On appeal,
Complainant references medical documentation but there is no evidence that any of this
documentation was provided to his supervisor (or the Agency) during the relevant time period.

The supervisor indicated that on June 2, 2011, Complainant was issued a letter of warning due
to his frequent use of sick leave and without proper notice from March – May, 2011. On
September 1, 2011, Complainant was issued a notice of unsatisfactory performance. We note
that the foregoing notices are not at issue. The supervisor stated that he issued Complainant
the notice of termination at issue during his probationary period due to the foregoing incidents
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and due to his lack of teamwork. The supervisor noted that Complainant was notified of the
sick leave and/or lack of teamwork issues on at least five occasions in July – September, 2011.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that he was denied a reasonable
accommodation. Complainant does not allege that he was required to perform his duties
beyond his medical restrictions. Complainant has not shown that the Agency was aware (or
should have been aware) of any claimed disability or that Complainant was requesting an
accommodation. Furthermore, we find that Complainant failed to show that he was treated
less favorably than a similarly situated employee under similar circumstances or that the
Agency’s reason for terminating him during his probationary period was a pretext for
discrimination. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 20, 2017
Date