Charles M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

May 10, 2018

0120172412 (E.E.O.C. May. 10, 2018)

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

Charles M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120172412

Agency No. 4K-270-0005-17

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated June 1, 2017, finding no discrimination
regarding his complaint alleging 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. For the
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Sales & Service Distribution Associate, PS-06/O, at Durham-Shannon Plaza Postal Station in
Durham, North Carolina. On December 8, 2016, Complainant filed his formal complaint
alleging discrimination based on disability (asthma) and sex (male) when:

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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(1) On October 17, 2016, he became aware that he was charged with being Absent Without
Official Leave (AWOL) on October 4, 2016; and

(2) On October 17, 2016, he became aware that his request for Family Medical Leave Act
(FMLA) coverage was denied.

On January 19, 2017, the Agency dismissed claim (2) for failure to state a claim pursuant to 29
C.F.R. § 1614.107(a)(1) and accepted claims (1) for investigation. After completion of the
investigation of the accepted claim, the Agency stated that it transmitted a copy of the
investigative report to Complainant on March 16, 2017. The Agency indicated that Complainant
had 30 days within which to request an EEOC Administrative Judge hearing but he failed to
request such. The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant files
the instant appeal and does not dispute the Agency’s issuance of its final decision without a
hearing.

ANALYSIS AND FINDINGS

Initially, we note that the Agency dismissed claim (2) for failure to state a claim. Therein,
Complainant claimed that he was denied his FMLA leave request. The proper forum for
Complainant to have raised his challenge to his FMLA eligibility was through the Department of
Labor’s FMLA enforcement procedures. It is inappropriate to now attempt to use the EEO
process to collaterally attack actions related to his eligibility for FMLA. A claim that can be
characterized as a collateral attack, by definition, involves a challenge to another forum’s
proceeding, such as the grievance process, the workers’ compensation process, an internal
agency investigation, or state or federal litigation. See Fisher v. Dep’t of Defense, EEOC
Request No. 05931059 (July 15, 1994). Therefore, we cannot address Complainant’s claim (2)
to the extent Complainant has alleged that the Agency’s actions were improper under FMLA.

Turning to claim (1), as this is an appeal from a decision issued without a hearing, pursuant to 29
C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review "requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant indicated that he was diagnosed with chronic
asthma in 2001, and he also had anxiety disorder. Complainant stated that his work restrictions
required him not be exposed to a work environment where the temperature was above 90 degrees
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or the humidity was greater than 95 degrees or his peak flows less than 500. Complainant
indicated that he could perform his core duties of the position, i.e., window retail operations and
boxing mail.

Complainant’s Acting Station Manager (M1) indicated that M1 charged Complainant with
AWOL on October 4, 2016, due to his failure to show up for work without scheduled leave. M1
stated that Complainant did not notify management of his absence until the evening of October 4,
2016, well after work hours. M1 stated that under the Agency policy, an employee unable to
report to work must call in the automated system and email notification was then sent to the
office by ERMS (Enterprise Resource Management System). However, stated M1, the office did
not receive email notification from ERMS relative to Complainant calling for time off. M1
indicated that management checked ERMS during the day and there was no indication
Complainant had called; and he did not have an approved FMLA request on file for that day.

The record indicates that at the relevant time, Complainant’s work schedule hours were from
8:50 am to 5:20 pm with Wednesday/Sunday days off. Complainant claimed that he called in the
automated call in center at 8:33 am before his scheduled work hour on October 4, 2016.
However, the record reflects that ERMS notification, i.e., an email which was automatically
generated upon receipt of the call in, was sent to management at 9:44 pm, on October 4, 2016,
indicating that Complainant requested leave for 8 hours for October 4, 2016. There is no
evidence that ERMS notification was sent to management indicating Complainant’s call in in the
morning as he claimed.

Complainant also indicated that he followed the proper Agency procedure and submitted PS
3971 form (Request for or Notification of Absence) to his immediate supervisor (S1) but it was
improperly denied due to insufficient leave. He indicated that he did have 12 hours of leave
available at that time. The record reflects that on October 13, 2016, Complainant submitted PS
3971 form for 24 hours of sick leave from October 4 – 7, 2016, i.e., 8 hours each on October 4,
6, and 7, 2016 (October 5, 2016, Wednesday, was an off day); and on the same day, October 13,
2016, S1 disapproved the request due to “insufficient [leave] balance, AWOL on 10/04/16.” We
note that Complainant’s earnings statement for the period of October 1 – 14, 2016, reflects that
he had a sick leave balance of 12 hours, and not 24 hours as he requested on October 13, 2016.

Here, we do not decide whether Complainant was an individual with a disability within the
meaning of the Rehabilitation Act. Complainant does not claim that he was denied a reasonable
accommodation or that he was required to perform his duties beyond his medical restrictions.
Upon review, we find that Complainant fails to show that there were any similarly situated
employees not in his protected groups who were treated differently under similar circumstances.
Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions
were motivated by discrimination as he alleged.

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CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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 (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. 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 10, 2018
Date