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

Equal Employment Opportunity Commission

Mar 29, 2017

0120150353 (E.E.O.C. Mar. 29, 2017)

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

Horacio Z.,1
Complainant,

v.

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

Appeal No. 0120150353

Agency No. HS-FEMA-21251-2012

DECISION

On November 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s September 30, 2014, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Police Officer,
GS-0083-07, in the Emergency Services Division, Police Branch, Mount Weather Emergency
Operation Center, in Mount Weather, Virginia. On December 1, 2011, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the basis of disability
(Chronic Hepatitis B) when: (1) on June 1, 2011, Complainant's supervisor (S1) issued him a
leave restriction letter indicating that his absences were excessive and disruptive to the
operation of the office; and (2) on October 2, 2011, S1 informed him that his doctors’ notes
for absences on September 4, 7, 8 and 22, 2011, were unacceptable, and charged Complainant
with Absence Without Leave (AWOL).2

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.
2 Initially, Complainant alleged additional bases and one additional claim but withdrew these
bases and claim prior to the date of this decision.
0120150353

2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
but subsequently withdrew his request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

FACTUAL BACKGROUND

On June 1, 2011, S1 issued Complainant a leave restriction memorandum indicating that his
absences were excessive and disruptive to the operation of the office. The memorandum
specified that: (1) annual leave had to be scheduled and approved as far in advance as the
amount of leave requested; (2) annual leave for emergency purposes had to be requested at
least one hour in advance and supported by documentation; (3) sick leave would not be granted
in the absence of medical documentation stating the nature of the illness and confirming that
Complainant was under a physician’s professional care and incapacitated for the specific period
of the absence; (4) Leave Without Pay (LWOP) would only be granted when scheduled and
approved as far in advance as the amount of leave requested in verified cases of emergency.

On September 12, 2011, S1 denied Complainant's requests for sick leave for absences on
September 4, 7, and 8, 2011, and charged him with AWOL for September 4 and 8, 2011, and
LWOP for September 7, 2011. On October 5, 2011, Complainant’s time card was corrected
to reflect that he was granted sick leave on September 4, 2011, and Holiday Leave on
September 7, 2011. Complainant was also charged with AWOL for his absence on September
22, 2011.

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, at Chapter 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”).

We assume for the purpose of this decision that Complainant is an individual with a disability
within the meaning of the Rehabilitation Act. Complainant affirms that he has never
requested a reasonable accommodation, nor does he need one to perform the essential functions
of his position and that he is not raising such a claim herein.

0120150353

3
Claim 1 – June 2011 Leave Restriction

The record shows that S1 articulated a legitimate, nondiscriminatory reason for issuing
Complainant a leave restriction memorandum on June 2, 2011. S1 explained that he issued the
memorandum to give Complainant an opportunity to improve his attendance because
Complainant’s excessive unscheduled absences (12 times from January 2, 2011, to May 31,
2011) were disruptive to the operation of the office. S1 also explained that Complainant’s
excessive unscheduled absences imposed an undue burden on other members of the Mount
Weather Police Department, since other officers frequently had to be called in for overtime to
meet manpower requirements, and this adversely affected productivity, morale, and work
relationships.

We agree with the Agency that Complainant failed to prove by a preponderance of the
evidence that management's legitimate, nondiscriminatory reason for issuing the June 2, 2011,
leave restriction memorandum was a pretext for discrimination. Complainant asserts that he
was absent excessively because of his disability.3

Claim 2 - Rejection of Doctors’ Notes and Charge of AWOL

The record shows that S1 articulated legitimate, nondiscriminatory reasons for rejecting
Complainant’s doctors’ notes for absences on September 4, 7, 8, and 22, 2011, and charging
him with AWOL. S1 explains that he rejected Complainant’s documentation because it did not
meet the requirements of Complainant’s leave restriction. According to S1 and the
documentary evidence in the record, the doctor’s note that Complainant submitted in
connection with his request for sick leave on September 4, 7, and 8 only excused Complainant
for September 7, 2011. The record reflects that Complainant’s doctor’s note did not indicate
the nature of the illness and only stated that Complainant had seen the doctor on September 7,
2011, could resume light duty on September 8, 2011, and could resume full duty on September
12, 2011. Additionally, Complainant’s documentation for his September 22, 2011, absence
did not indicate the dates of his incapacitation or clearance to return to work.

S1 further states that he subsequently reversed his decision regarding the September 4, 2011,
absence because S1’s supervisor had granted the sick leave request while unaware of
Complainant’s leave restriction. S1 then changed Complainant’s LWOP for September 7,
2011 to Holiday Leave.

We agree with the Agency that Complainant failed to prove by a preponderance of the
evidence that management’s legitimate, nondiscriminatory reasons for rejecting his doctors’
notes and charging him with AWOL were pretexts for disability discrimination. Complainant
argues that his doctors’ notes did not meet the requirements of his leave restriction because

3 We note that Complainant fails to identify similarly situated comparison employees who were
treated differently.

0120150353

4
releasing information about the reasons for Complainant’s visits to doctors would have violated
the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and his doctors
refused to do so.

An employer may ask an employee to justify his/her use of sick leave by providing a doctor’s
note or other explanation, as long as it has a policy or practice of requiring all employees, with
and without disabilities, to do so. See EEOC Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act
(ADA) (July 27, 2000). The documentary evidence shows that the Agency has such a leave
policy that is applied to disabled and non-disabled employees alike. In addition, Complainant
fails to explain how compliance with the requirement to provide medical documentation for
sick leave violated HIPAA.

Complainant also argues that S1’s rejection of his doctor’s notes for treatment for poison ivy
on September 7, 2011, was inconsistent with his acceptance of Complainant’s documentation
for emergency room treatment for facial injuries resulting from his car’s collision with a deer
on September 27, 2011. S1 stated that he approved Complainant’s leave request for the car
accident because Complainant’s medical documentation met the requirements of his leave
restriction, indicating that Complainant was incapacitated for duty on that date and providing a
return to duty date. The record reflects that Complainant’s medical documentation dated
September 27, 2011, stated that Complainant had visited the emergency room on that date, was
being treated for a facial wound resulting from a motor vehicle accident, and could return to
work on September 28, 2011. In contrast, Complainant acknowledges, and the record reflects,
that his medical documentation for his September 7, 2011, absence did not disclose his
diagnosis or treatment.

Accordingly, we agree with the Agency that Complainant failed to prove, by a preponderance
of the evidence, that management’s legitimate, nondiscriminatory reason for its conduct in
Claim 2 was a pretext for disability animus.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.4

4 We note that Complainant raises a new claim on appeal that S1 engaged in a per se violation
of the Rehabilitation Act when he allegedly explained to his staff how Hepatitis B is
transmitted. This claim is not at issue herein. Accordingly, without determining the timeliness
of such claim, if Complainant wants to pursue this claim, he should contact an EEO Counselor
to do so.
0120150353

5
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.

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.

0120150353

6
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

March 29, 2017
Date