0120113537
09-25-2013
Robin Geronimo-Yommer, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.
Robin Geronimo-Yommer,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.
Appeal No. 0120113537
Agency No. HHS-CMS-0449-2010
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal1 from the Agency's June 24, 2011 final decision concerning her 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.
At the time of events giving rise to this complaint, Complainant worked as a Management Assistant, GS-0344-07 at the Agency's Office of Information Services in Baltimore, Maryland.
Complainant's First Level Supervisor was the Director, Division of Executive Support (S1).
On October 1, 2010, Complainant filed an EEO complaint2 alleging that the Agency discriminated against her on the basis of disability when:
1. On May 20, 2010, S1 placed her on Leave Restriction;
2. On July 30, 2010, S1 denied her request for Family and Medical Leave Act (FMLA) leave for July 13-16, 2010; and
3. On August 10, 2010, S1 issued her an Official Reprimand.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision analyzed Complainant's complaint under a disparate treatment framework and concluded that Complainant failed to prove that the Agency subjected her to disability discrimination as alleged.3
Claim 1
Assuming, arguendo, that Complainant established a prima facie case of disability discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for placing her on Leave Restriction; namely, Complainant had a pattern of abuse in her unscheduled leave. Specifically, S1 averred that Complainant frequently took unscheduled leave and failed to call in when she arrived late to work or when she was unable to report to work. In addition, S1 averred that, by May 2010, there had been several days where Complainant did not call in and she had to call Complainant to see if she was coming to work. Further, S1 averred that Complainant had various reasons for taking unscheduled leave such as a stomach virus, an injury due to a dog bite, an injury due to falling on ice, flat tires, and issues with transportation and dropping her husband off at work. Finally, S1 averred that Complainant's previous supervisor had issued her a Leave Warning in May 2009.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was pretextual. In her affidavit, Complainant argued that she provided medical documentation for her absences and had legitimate reasons why she could not be at work.
Upon review, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reason was a pretext for disability discrimination. Article 31 ("Time and Leave"), Section 1.D of the Master Labor Agreement provides, in pertinent part, that "[w]hen an employee has not received advance approval for leave and does not report to work, the employee must - by the latest allowable arrival time depending on the employee's official duty station and work schedule ... [s]peak directly to his/her leave approving official ... [or] [s]end the leave approving official an email." Even if Complainant provided medical documentation after-the-fact in relation to her absences, Complainant did not show that she regularly adhered to the procedures for requesting leave by timely notifying S1 that she would be late to work or absent from work.
Claim 2
Assuming, arguendo, that Complainant established a prima facie case of disability discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for denying her July 20, 2010 request for FMLA leave for July 13-16, 2010; namely, Complainant did not follow the requirements for invoking her entitlement to FMLA leave. Specifically, S1 averred that Complainant did not make a verbal request for FMLA either prior to her absence or at the time she notified management of her absence. In addition, the Management Analyst averred that, according to 5 C.F.R. � 630.1203, an employee could retroactively invoke FMLA leave only if the need for FMLA leave was unforeseeable and both the employee and the employee's representative were incapacitated during the absence.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was a pretextual. In her affidavit, Complainant argued that she should be able to retroactively invoke FMLA leave because she was incapacitated and her husband, who notified S1 of her absence, did not know about FMLA.
Upon review, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reason was a pretext for disability discrimination. 5. C.F.R. � 630.1203(b) states, in pertinent part, "An employee may not retroactively invoke his or her entitlement to family and medical leave. However, if an employee and his or her personal representative are physically or mentally incapable of invoking the employee's entitlement to FMLA leave during the entire period in which the employee is absent from work for an FMLA-qualifying purpose ... the employee may retroactively invoke his or her entitlement to FMLA leave within 2 workdays after returning to work." (emphasis in original). Complainant did not show that, for the entirety of the July 13-16, 2010 period, both she and her husband were physically or mentally incapable of invoking her entitlement to FMLA leave.
Claim 3
Assuming, arguendo, that Complainant established a prima facie case of disability discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for issuing her an Official Reprimand; namely, Complainant did not follow the requirements set forth in her May 20, 2010 Leave Restriction. Specifically, S1 averred that she charged Complainant with 24 hours of Absent Without Leave (AWOL) on July 13, 15, and 16, 2010 because Complainant did not call when she failed to show up for work.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was pretextual. In her affidavit, Complainant argued that she was absent from work because of injuries she sustained after a tire on her care blew out. In addition, Complainant argued that her husband left two voicemail messages for S1 and he mentioned in his second message that she would be absent for the remainder of the week.
Upon review, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reason was a pretext for disability discrimination. Complainant's May 20, 2010 Leave Restriction states, in pertinent part, the following requirement: "For all leave requests, [Complainant] must call [S1] or email [S1] directly by 9:30 a.m. on the day [she] will be absent to make [her] request." Complainant's cell phone records reflect that the following calls were made to S1 during the July 13-16, 2010 period: (a) July 13 at 9:07 a.m.; (b) July 14 at 4:42 a.m.; and (c) July 15 at 3:31 p.m. and 3:43 p.m.
Regarding her July 13 absence, we find that Complainant did not adhere to the 9:30 a.m. call-in requirement. According to Complainant's affidavit and Complainant's cell phone records, Complainant informed S1 at 9:07 a.m. that she was sitting on the side of the road due to a tire blowout and waiting for the tow truck to arrive. Complainant, however, did not show that she told S1 during the call that she would be absent for the remainder of the day. We note that, in her interview with the EEO Counselor, Complainant admitted that she did not notify S1 of her absence on July 13.
Regarding her July 15 absence, we find that Complainant did not adhere to the 9:30 a.m. call-in requirement. Complainant's cell phone records reflect that the two calls to S1 on July 15 occurred after 9:30 a.m. As to the July 14 call, S1 averred that the call was from Complainant's husband who stated that Complainant would not be in that day (July 14, 2010). We note that, in her affidavit, Complainant admitted that the first message left by her husband did not mention that she would be absent for the remainder of the week.
Regarding the July 16 absence, we find that Complainant did adhere to the 9:30 a.m. call-in requirement. Although S1 averred that she did not receive a call from Complainant's husband after July 14, Complainant's cell phone records reflect that two calls were made to S1 on the afternoon of July 15. In addition, Complainant averred that that the second message left by her husband mentioned that she would be absent for the remainder of the week. Therefore, we find it likely that Complainant's husband left a message for S1 on July 15 stating that Complainant would be absent on July 16.
While S1 may have erroneously charged Complainant with AWOL on July 16, we are not persuaded that S1's decision to do so - or to issue Complainant the Official Reprimand - was based on Complainant's disability. We note that for Complainant to establish that disability discrimination occurred, it is not sufficient "to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." See St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original). Here, the record reflects that Complainant had ongoing problems with her use of unscheduled leave and her failure to properly notify her supervisors before taking such leave. Moreover, the record reflects that Complainant's supervisors attempted to address her leave problems by initially issuing her a Leave Warning, next placing her on Leave Restriction, and ultimately issuing her an Official Reprimand.
After a review of the record in its entirety, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that disability discrimination occurred.
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), at 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
____9/25/13______________
Date
1 Complainant did not submit a statement or brief in support of her appeal.
2 On January 26, 2011, Complainant alleged that, in late December or early January, S1 denied her request for official time to work on her complaint. In a January 26, 2011 email and a June 30, 2011 letter, the Agency asked Complainant to provide additional information about the allegation, including the specific dates. The record contains no indication that Complainant provided the Agency with any additional information about the allegation. Given the lack of information provided by Complainant, we are unable to conclude that the Agency denied her request for official time. However, we remind the Agency of its obligation to provide a reasonable amount of official time. See 29 C.F.R. � 1614.605(b).
3 Complainant did not allege that the Agency denied her reasonable accommodation with respect to leave.
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0120113537
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113537