0120090387
04-14-2009
William S. Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
William S. Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090387
Agency No. 200L-0596-2008103002
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated September 22, 2008, dismissing his complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The FAD defined complainant's complaint as alleging that he
was subjected to discriminatory hostile work environment based on his
disability [end stage liver disease] when:
1. on July 26, 2007, a human resources specialist refused to forward
his Family and Medical Leave Act (FMLA) request to a superior,1
2. when the human resources specialist explained he was not taking action
on the FMLA paperwork because of alleged problems with it, he included
complainant's office manager in the conversation, even though complainant
objected because the discussion involved personal medical information,
3. when complainant submitted an updated FMLA medical certification in
January 2008, the human resources specialist advised he was not taking
action on it because it was illegible,
4. despite complainant's objections, the human resources specialist
included the office manager in the above discussion, and
5. on May 13, 2008, the human resources specialist refused to take action
on complainant's request for FMLA leave, denying his rights under FMLA.2
Complainant wrote that on May 13, 2008, his wife then took his FMLA
paperwork directly to the human resource specialist's superior, who
promptly in coordination with others approved his request for leave
under FMLA retroactive to July 26, 2007. He wrote, however, that he
needlessly suffered for almost a year, because had he been approved for
FMLA in July 2007, he would not have needed to keep pressing himself to
work during that time, and would have gotten needed rest.
The FAD dismissed the complaint for failure to timely initiate contact
with an EEO counselor. It reasoned that the last act of discrimination
occurred in January 2008, but complainant did not contact an EEO
counselor until May 13, 2008, beyond the 45 calendar day time limit to
do so. The FAD found that there was no violation in May 2008 because
complainant's request in May 2008 to participate in the FMLA program
was promptly approved.
On appeal, complainant contends that the agency mischaracterized
his complaint. He argues that his complaint is about the denial by
the human resources specialist of his use of annual, sick, or leave
without pay (LWOP) to take time off for illness, not FMLA. Accordingly,
he argues the approval of FMLA in May 2008 did not resolve things.
Complainant contends that in August or September 2007, he talked to an
EEO counselor, and was advised to get help from the supervisor rather
than file a complaint. He writes his supervisor was of no assistance,
said he could not take FMLA, and the office manager told him to stop
putting FMLA in the space for the reason he was taking off.3 Complaint
did not pursue a complaint at that time.
In opposition to complainant's appeal, the agency characterizes
complainant's complaint as alleging the denial of FMLA, which was promptly
approved after complainant's May 13, 2008, request. Citing Commission
precedent, the agency argues that the complaint fails to state a claim
because complainant is collaterally attacking another proceeding, and
the proper place to challenge a denial of FMLA is with the Department of
Labor. In response to the opposition, complainant argues that the denial
of leave was a continuing violation, and he was unable to take leave for
a time in May 2008 because of the human resource specialist's not taking
action then. He argues this ongoing denial of leave was harassment.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). Under 29 C.F.R. � 1614.105(a)(2), an
agency shall extend the 45 day time limit to initiate EEO counseling
for reasons considered sufficient by the agency or Commission.
As an initial matter, we find that the FAD properly characterized the
complaint. A review of the complaint shows is was about the agency not
approving complainant's participation in the FMLA program, and his office
manager being included in these conversations in August or September
2007, and January 2008. We find each denial of complainant's request
to participate in the FMLA program was a discrete act, and we decline
to treat them as one ongoing harassment claim.
While complainant alleges the human resources specialist again took no
action when he told him to redo the FMLA paperwork on or about May 13,
2008, he wrote his wife submitted the paperwork the same day to a superior
and it was promptly approved. Hence, in May 2008, there was no denial.
Complainant's contact with an EEO counselor on May 13, 2008, was untimely
because it was more than 45 calendar days from the agency's failure to
approve complainant into the FMLA program in August and September, 2007,
and January 2008.
We decline to extend the time limit. While the EEO counselor allegedly
advised complainant in September or October 2007 to get assistance from
his supervisor rather than file a complaint, this did not excuse his
waiting seven or eight months, to May 2008, to contact an EEO counselor
to initiate the instant claim. According to complainant, when he went
to his supervisor, the supervisor explicitly would not assist.
Further, without ruling on whether the denial of FMLA states a claim,
we find that claim 5 fails to do so. 29 C.F.R. � 1614.107(a). As noted
by the agency, it promptly approved complainant's FMLA leave request in
May 2008, and hence we find complainant was not aggrieved by claim 5.
Accordingly, the FAD 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
April 14, 2009
__________________
Date
1 Specifically, complainant alleged he submitted to his supervisor a
FMLA medical certification form dated July 26, 2007, by his health care
provider. Soon thereafter he spoke with human resources specialist,
who allegedly refused to forward the paperwork for action.
2 Specifically, complainant alleged that after submitting doctor's note
from his health care provider releasing him from work, the human resources
specialist advised him on or about May 13, 2008, that he could not take
off and the forms would have to be completed again, violating his FMLA
rights.
3 In his complaint, he wrote that he talked to an EEO counselor, and
did not file a complaint. He did not state therein what the counselor
allegedly said.
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0120090387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090387