0120071182
03-20-2009
Michael Wisely, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Wisely,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071182
Agency No. 1H-337-0009-06
Hearing No. 510-2006-00217X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleged that he was
subjected to discrimination on the bases of race (Caucasian), sex (male),
and color (white) when, on March 9, 2006, complainant was required to
obtain a second medical opinion for complainant's request of Family
Medical Leave Act (FMLA) certification.
On October 24, 2006, an EEOC Administrative Judge (AJ) dismissed
complainant's hearing request. The AJ stated that complainant withdrew
complainant's request for a hearing. On appeal, complainant does not
challenge the AJ's dismissal of the hearing request and we find no reason
to alter the AJ's action.
On November 22, 2006, the agency issued a decision finding no
discrimination. Complainant now appeals from that decision.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its action. The FMLA Coordinator (Coordinator) for the
District explained that when an employee has a claimed absence and
requests FMLA protected leave for a serious health condition, he/she
is provided a case number pending documentation, and informational
publications 71 and WH-380 are mailed to their address. The Coordinator
said that an employee has 15 days to provide complete documentation.
The Coordinator explained that the documentation is then reviewed and
an electronic mail message is sent to the supervisor and manager.
The Coordinator stated that, if they do not doubt the validity of
the claim, the health condition is approved and the FMLA leave is
controlled by federal regulations. The Coordinator asserted that
he received complainant's FMLA certification on February 3, 2006.
The Coordinator stated that, it was unclear for which case complainant
was requesting FMLA protection and for which of the days he needed FMLA
protection. The Coordinator recalled that he sent the Supervisor of
Distribution Operations (Supervisor) an electronic mail message saying
that they could either request clarification, including information
about the expected frequency and duration of the condition, or request a
second opinion if there was reason to doubt the validity of the claim.
The Coordinator stated that the Supervisor preferred to seek a second
opinion because there was a pattern of Monday leave. The Coordinator
argued that he forwarded a medical release to the Supervisor, who
asked complainant to sign it, but complainant declined to do so.
The Coordinator asserted that the Supervisor then asked him to continue
with the second opinion request, which he forwarded to the Manager of
Human Resources. The Coordinator claimed that other employees were also
sent for second opinions and identified two employees from complainant's
installation. The Coordinator stated that it was not unusual for
the medical unit to review certifications, but they did not do so in
this case. The Coordinator stated that complainant had requested FMLA
dependent care for his child, which had been approved and on file since
June 19, 2001, and has requested FMLA on several other occasions, which
were eventually denied as no supporting documentation was provided.
Complainant has not shown that any similarly situated employees were
not required to submit second medical opinions for FMLA certifications.
Furthermore, complainant failed to show, by a preponderance of the
evidence, that the agency action was motivated by discrimination on the
bases of race, sex or color.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
March 20, 2009
__________________
Date
4
0120071182
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013