0120092246
11-12-2010
Linnon Tyson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Linnon Tyson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120092246
Hearing No. 471-2007-00156X
Agency No. 4J-481-0048-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 24, 2009 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Welder, PS-07, at the Agency's Detroit Bulk Mail Center in Allen Park, Michigan.
On April 21, 2007, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (seizures), and in reprisal for prior protected activity when:
on December 20, 2006, he was denied FMLA leave.
Following a hearing held on July 17, 2008, the AJ issued a decision on February 23, 2009, finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, sex, disability and retaliation.1 The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The AJ noted that Complainant has epilepsy which periodically causes him to have seizures. The AJ noted that Complainant stated that epilepsy does not affect his ability to perform the essential functions of his job when he is working. Complainant submitted several certifications from his health care provider concerning his epilepsy in order to quality for Family Medical Leave (FMLA). The certificates indicated that Complainant would need one to two days off from work after experiencing an epileptic seizure. Complainant's epileptic seizures occurred intermittently every one to two months. The AJ noted that while Complainant submitted general documentation for his condition in June 2006, he was never actually approved for FMLA leave. The AJ noted that Complainant's leave slip was signed by his supervisor as approved FMLA, but the leave slip was not approved by the FMLA Coordinator (C1) because Complainant did not submit all of the required medical certification for being absent on the particular day. The AJ determined that Complainant continued to mistakenly believe that his FMLA request for June 2006 had been approved. The AJ noted that Complainant requested FMLA for November 13, 2006. The AJ noted that because Complainant never submitted the additional information requested by C1, his request for FMLA for November 13, 2006 was denied.
Further, the AJ noted that C1 approved Complainant's requests for FMLA when Complainant submitted sufficient documentation for his absence on a specific day. The AJ determined that this action reflects C1's consistency in application of the FMLA rules to Complainant and others. The record reflects that in 2005, C1 approved Complainant's FMLA certification for an asthma condition for the period covering September 13 - 28, 2005 and October 23, 2005 through February 21, 2006.
The AJ found C1 to be a credible witness. The AJ noted that during her testimony, C1 acknowledged that a medical certification for a FMLA condition is good for one year. C1 stated, however, the supervisor must still see some documentation to show the day of incapacitation and that it was for the FMLA approved condition. C1 stated that Complainant did not submit medical documentation showing that his November 13, 2006 absence was due to his epileptic seizure disorder. C1 acknowledged that she had documentation showing Complainant's epilepsy periodically caused seizures which would cause him to need one to two days off. However, C1 had no medical documentation showing that the November 13, 2006 absence was due to a seizure. C1 stated even after she received the FMLA medical certificate dated November 29, 2006, she still needed documentation of the date of his incapacity for this condition. Specifically, C1 stated that Complainant's November 29, 2006 medical certification "didn't state the frequency and duration of working intermittently and it also didn't have the date of being incapacitated for that condition." C1 stated that she sent Complainant a letter dated December 15, 2006, informing him that she needed additional medical documentation before his request for FMLA leave would be approved. Moreover, C1 stated that Complainant was denied FMLA for November 13, 2006 because he never submitted the requested documentation.
On appeal, Complainant argues that the AJ denied him a full and fair hearing, and that that the AJ's findings are not supported by the record. For instance, Complainant argues that during the January 22, 2008 pre-hearing, the AJ removed two key witnesses, his first-level supervisor "who had signed and approved FMLA for me per the request of [C1], a key witness was also excused stating extreme injuries received during accident, only to have her return to work full duty 1 week after the hearing."
Complainant further argues that the AJ intervened whenever the witnesses "stumbled in answering questions of what should the now do given the fact that from June 6-06 and November 13, 2006 - why did they not send me out for a second opinion as stated in the FMLA act, and are they aware that FMLA CFR 220 makes it illegal to according to the Civil Rights Act of 1964 Title 7, you cannot dis- encourage delay, interfere den[y] or take any action because an employee chose to impose their right to FMLA and it includes any form or pressure, threats to affect employment or any other irrelevant or arbitrary reason the agency may try to [i]mpose [emphasis in the original]."
ANALYIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Moreover, we discern no improprieties in the manner in which the AJ conducted the hearing, contrary to Complainant's appellate assertions. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
November 12, 2010
__________________
Date
1 For purposes of this analysis, we assume without finding, that Complainant was a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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