Sidney S.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.

Equal Employment Opportunity Commission

May 30, 2018

0520180208 (E.E.O.C. May. 30, 2018)

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

Sidney S.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.

Request No. 0520180208

Appeal No. 0120152285

Hearing No. 410-2013-00394X

Agency No. HHS-CDC-0273-2012

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120152285 (December 15, 2017).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

In his underlying complaint, Complainant claimed that he was discriminated against on the bases
of his age (56), disability (blood clotting disorder), and in reprisal for his prior EEO activity when:

1. On or about March 22, 2012, Complainant’s management issued him a Notice of Proposed
Removal;

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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2. Since July 2011, Complainant’s management harassed him regarding medical
documentation; circulated his medical documentation in violation of the Privacy Act; failed
to engage in the interactive process; provided Complainant with false and misleading
information regarding the reasonable accommodation process; and denied his request for a
reasonable accommodation;

3. Since July 2011, Complainant’s management made derogatory comments regarding his
age by stating, “he should not be acting like that at his age,” Complainant was told, “he has
been in service long enough,” Complainant was referred to as “old,” Complainant was told
to “act his age and grade,” and Complainant’s “salary and benefits were taking up the
available discretionary funding in the Division;”

4. Since filing his EEO complaint, management began unusually scrutinizing Complainant
and repeatedly charging him with Absent Without Leave (AWOL) in violation of the leave
policy;

5. Between June and August 2011, Complainant’s management failed to inform him of the
identity of his supervisor so that Complainant could address concerns with that person;

6. Since the summer of 2011, Complainant’s management repeatedly denied his request for
annual leave;

7. On or about August 15, 2011, Complainant’s manager demanded that Complainant attend
a meeting in person, notwithstanding Complainant’s condition, but subsequently and
suspiciously cancelled the meeting when Complainant arrived;

8. On or about October 25, 2011, the Agency issued Complainant a 14-day suspension to
begin to set Complainant up for termination;

9. Beginning November 22, 2011, Complainant’s management repeatedly accused
Complainant of not following Agency leave policy and harassed Complainant regarding
time and attendance;

10. From January 2012 to the present, Complainant’s management sent him numerous
harassing emails;

11. On or about April 17, 2012, senior Agency officials asked Complainant in a meeting if
Complainant had thought about retiring as a way to avoid termination; and

12. In early 2012, Complainant’s supervisor (Division Director) told Complainant that other
employees with disabilities have been able to work so Complainant should be able to as
well.

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In its final decision, the Agency determined that Complainant was an individual with a disability
within the meaning of the Rehabilitation Act, but that Complainant failed to establish that he was
qualified for his position because he asserted he was unable to return to work for an extended
period of time. The Agency stated that assuming Complainant established a prima facie case of
disability discrimination, to the extent he was alleging a denial of reasonable accommodation with
respect to using leave, Complainant failed to provide proper documentation to account for many
of his absences as related to his disability. With regard to Complainant’s claim of disparate
treatment, the Agency determined that responsible management officials provided legitimate,
nondiscriminatory reasons for their actions. The Agency determined that Complainant did not
prove that these reasons were a pretext for discrimination.

On appeal of the instant complaint, the Commission affirmed the Agency’s final decision. We
interpreted Complainant’s request for a modification of the leave policy due to his medical
condition to be a request for a reasonable accommodation. We noted that the Agency informed
Complainant of the Reasonable Accommodation Coordinator, who Complainant emailed in
February 2012. However, Complainant did not indicate at that time any accommodation that
would allow him to return to work, and no reasonable accommodation was provided. The
Commission found that Complainant was not a qualified individual with a disability. We noted
that Complainant was frequently incapacitated and unable to work or to travel into the office. As
the Agency stated in its final decision, Complainant acknowledged in his affidavit that he was
frequently incapacitated to even work from home as he was often in too much pain to function,
and his condition required medication that often left him unable to think clearly enough to work.

With respect to Complainant’s disparate treatment claims, we found that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. As for the suspension at issue in claim (8),
we stated that the Agency asserted that Complainant misused his government issued credit card
for non-government travel use. With regard to the proposed removal at issue in claim (1), we
noted that the Agency stated that Complainant had been charged with AWOL on numerous
occasions from June 2011 – March 2012. We observed that the Agency informed Complainant of
the documentation that was required and that Complainant failed to comply. We noted that some
of the medical documents indicated that Complainant could not travel, which appeared to be
relevant because Complainant was no longer living in Atlanta where his workplace was located.
The Commission found that Complainant failed to show that the Agency’s reasons were pretext
for discrimination.

In terms of Complainant’s harassment claim, we found that Complainant did not provide sufficient
evidence to establish that the alleged offensive conduct occurred due to his protected bases. We
observed that Agency officials were seeking to obtain information concerning Complainant’s
continued absences and expected ability to return to the workplace but that it became evident that
Complainant had moved to South Florida while his work location was in Atlanta. We recognized
that Complainant was frustrated that his requests for leave were being denied or that he was asked
to submit medical documentation to support his requests. Upon review of the record, the
Commission found that Complainant did not show that the alleged events created a hostile work
environment based on disability, age, or reprisal.
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In his request for reconsideration, Complainant argues that the Commission erred in finding that
he was not a qualified individual with a disability. Complainant maintains that he was able to
telework and would have been permitted to do so by his supervisor. Complainant stated that he
successfully teleworked from March 2011 – June 2011 under his former supervisor. Complainant
argues that rather than work with him to find a workable solution that would accommodate his
disabilities and allow him to perform his job duties, his new supervisor insisted that he return to
the office. According to Complainant, although he may have been unable to identify any
accommodation that would allow him to permanently return to the workplace, telework would
have allowed him to successfully perform the essential functions of his position. Complainant
asserts that the Agency refused to approve telework despite not claiming that it would pose an
undue hardship. Complainant states that he repeatedly requested the opportunity to use annual
leave as a reasonable accommodation for his disabilities, but was denied the opportunity to do so.

Complainant argues that the Commission erred in finding that the Agency’s stated reasons for its
actions were not pretext for discrimination. Complainant maintains that he had not moved from
Atlanta. Complainant states that he needed to see specialists to treat his disabilities and that they
and his family members were located in Florida. According to Complainant, upon visiting his
physician in Florida, he was advised that he could not travel due to health risks. With regard to
his proposed removal, Complainant maintains that he provided a significant amount of medical
documentation including notes and excuses for his absences. Complainant argues that although
he had plenty of annual leave to cover any absences that were not covered by medical
documentation, the Agency frequently denied these requests for annual leave without reason and
charged him with being AWOL. Complainant contends that the AWOL charges that served as the
grounds for the proposed removal would not have existed had the Agency accommodated him.

With regard to his harassment claim, Complainant reiterates the incidents that he claims reflect
continuous unwelcome treatment. Complainant argues that statements concerning his age, time in
service and eligibility for retirement are clearly based on his age. Complainant contends that
requests concerning medical documentation and denial of leave, and statements about his disability
are clearly based on his disability. Complainant states that the Agency requested medical
documentation for annual leave rather than sick leave, and then baselessly denied leave when he
did not provide documents which were not required.

We observe that Complainant has not presented sufficient persuasive evidence in support of his
request for reconsideration. The arguments that Complainant offer here were previously presented
on appeal. The Commission considered Complainant’s contentions in its previous decision and
found they were insufficient to establish that he was discriminated against. We observe that a
formal telework agreement was never established between Complainant and the Agency. As our
previous decision noted, Complainant was frequently incapacitated and unable to work or to travel
into the office. Complainant did not notify the Reasonable Accommodation Coordinator that there
was any accommodation that would have allowed him to return to work. We observe that the
Agency understandably charged Complainant with being AWOL when he failed to submit
adequate medical documentation to support some of his absences.
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We further find that Complainant has not shown that any of the alleged acts of harassment were
attributable to animus based on his disability, age, or prior EEO activity. The Commission
emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18
(Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20,
2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate
decision involved a clearly erroneous interpretation of material fact or law, or will have a
substantial impact on the policies, practices, or operations of the Agency. Complainant has not
done so here.

After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 0120152285 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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.

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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

May 30, 2018
Date