Discrimination for Taking FMLA Leave

On April 12, 2010, the EEOC Office of Federal Operations issued its decision in Ramos v. Department of Defense, EEOC Appeal No. 0720090055. OFO affirmed the Administrative Judge's reinstatement of Ramos, finding that the agency had engaged in disability discrimination by firing Ramos for taking Family and Medical Leave Act leave.

Ramos was hired on a one-year appointment to work at the commissary at McGuire AFB in New Jersey. At the end of May 2006, Ramos suffered a heart attack, from which he spent three months recuperating on agency-approved leave. Ramos returned to work in September 2006, and the agency extended Ramos' appointment for another year. Ramos had returned to work subject to a 20 lb. lifting restriction, which the agency accommodated by modifying Ramos' duties. Six months later, in February 2007, Ramos again suffered chest pains diagnosed as caused by a possible pulmonary embolism, and his doctors ordered him not to work for five weeks and increased his lifting restriction to a 5 lb. maximum. After two weeks, Ramos exhausted his leave and requested FMLA leave for three weeks. The agency responded by terminating Ramos' employment effective early March 2007 for inability to perform his duties.

Ramos filed an EEO complaint challenging the termination as discrimination based on disability and other bases. After a hearing, an EEOC administrative judge found in July 2009 that the agency had engaged in disability discrimination. The AJ found that Ramos's lifting restriction and physical cardiac limitations rendered him a qualified individual with disability, and found that Ramos's leave requests constituted requests for reasonable accommodation. For firing Ramos rather than granting his FMLA leave, the agency was found to have failed to reasonably accommodate him. Remedies ordered included Ramos's placement in a permanent position at Seymour Johnson AFB in North Carolina (near Ramos's then-current residence), payment of back pay and $4,000 compensatory damages.

The agency rejected the decision and appealed to OFO. OFO affirmed the decision with one modification.

The agency had asserted that Ramos was not a qualified individual with disability with respect to the pulmonary embolism-the cause of the leave request-and that Ramos's other medical conditions were unrelated to the need for leave, thus requiring an analysis of whether the pulmonary embolism, in isolation, substantially limited a major life activity (presumably under the pre-ADA Amendments Act standards, as Ramos was terminated before that Act was passed). OFO rejected that argument, finding that Ramos's prior medical absences and his other disabilities influenced the agency's decision to terminate, noting record evidence that the agency would not have removed Ramos had his FMLA request been made in isolation of his prior medical absence. Citing EEOC enforcement guidance, OFO noted that failure to grant leave under these circumstances constituted retaliatory punishment of Ramos for utilizing his prior approved reasonable accommodation leave. OFO found the agency's argument that accommodating Ramos's FMLA request would constitute an undue hardship unsupported in the record.

OFO also rejected the agency's challenge to the reinstatement remedy ordered by the administrative judge. The agency had asserted that since Ramos was a term employee rather than a permanent employee, his reinstatement and back pay should only be limited to September 2007, the end date for his last one-year term appointment. OFO affirmed the award of a permanent appointment, relying of record evidence of other term employees similarly situated to Ramos generally receiving permanent appointments at the agency. OFO further affirmed the administrative judge's compensatory damages award.

OFO adjusted the relief in terms of the duty station for Ramos' reinstated position. OFO found that the mere fact that Ramos had moved to North Carolina did not itself mandate that the agency provide Ramos a job at Seymour Johnson AFB. However, OFO also found that had the agency not discriminated against Ramos, he would not likely have been impelled to move from New Jersey to North Carolina. Accordingly, OFO modified the remedial order to give the agency a choice between offering Ramos a permanent appointment at McGuire AFB and offering Ramos a permanent appointment at Seymour Johnson AFB. If the agency were to choose McGuire AFB, however, OFO required the agency to provide Ramos 120 calendar days to move, with Ramos occupying an interim appointment at Seymour Johnson AFB during that period. OFO remanded the case to the agency for determination of back pay.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/.

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