0120072036
05-22-2009
Eulish Curtis Byrd, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eulish Curtis Byrd, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072036
Agency No. 4G-780-0246-06
DECISION
Complainant filed an appeal with this Commission from the February 13,
2007 agency decision finding no discrimination.
Complainant alleges employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. Specifically, complainant
alleged that the agency discriminated against him based on his age (51)
and disability (head/knee/back) when on July 25, 2006, his request for
leave under the Family Medical Leave Act (FMLA) was denied.
After an investigation, complainant was informed of his right to request
a hearing before an EEOC Administrative Judge or to the issuance of an
agency decision. Complainant requested an agency decision.
In its decision, the agency found that complainant failed to establish
a prima facie case of age or disability discrimination. The agency
also found that, even if complainant established a prima facie case,
it articulated legitimate, nondiscriminatory reason for its action and
that complainant failed to show that the agency's reason was not the real
reason and was pretext for prohibited discrimination. In so finding, the
agency indicated that it did not deny complainant's FMLA leave request.
The agency noted that on July 21, 2006, complainant submitted several
medical certifications related to his medical conditions and the FMLA
Coordinator returned the certifications as "unsolicited" because the
agency did not accept FMLA certifications not submitted in connection with
an absence. The agency also noted that in returning the certifications,
the FMLA Coordinator highlighted areas of the leave request forms which
needed additional information from complainant's health care provider
so that the forms would be properly completed. The agency further
noted that the FMLA Coordinator stated that he had returned numerous
certifications as unsolicited to other employees.
Complainant, a military veteran, asserts that he sustained back and
knee injuries and that he began using FMLA leave in 1998, to cover
his absences for treatment at the Veterans' Administration hospital.
He asserts further that he had had no problems until about four years
prior to the instant complaint when FMLA Coordinators changed. He asserts
that FMLA requests that were routinely approved were now being denied,
noting that that there had been nine denials. Complainant also asserts
that the agency has changed its policy regarding FMLA requests and now
required exact dates for leave. He further asserts that previously
exact dates were not needed and all a doctor had to state was that the
employee requesting FMLA leave would need leave two to three times a
year and the employee could take leave two to three times a year and
obtain prior FMLA approval.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978).
Because this is an appeal from a decision issued without a hearing, the
agency's decision is subject to a de novo review by the Commission. 29
C.F.R. � 1614.405(a).
Upon review, the Commission finds that the agency did not discriminate
against complainant. Because we find that the agency articulated a
legitimate, nondiscriminatory reason for its conduct, a prima facie
inquiry is not necessary. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
Complainant's leave request was not approved because it was incomplete
and lacked proper certification. The record contains the July 21,
2006 letter of the FMLA Coordinator to complainant which reveals that
complainant submitted Forms WH-380 and other related medical documents
for the purpose of FMLA protection and was advised that the documents
would not be accepted for FMLA purposes because they were not submitted
in connection with an absence. The letter indicated that the agency
records did not contain a current FMLA leave request for the health
conditions of complainant's certifications and further that certifications
were accepted only when connected to an FMLA absence. The letter
reveals that complainant's certifications were not properly completed.
The letter informed complainant that medical certification had to verify
incapacitation on the day of the absence and any consecutive dates.
Assuming without deciding (for the purposes of this decision)
that complainant is a qualified individual with a disability, the
Commission concludes nonetheless that complainant has failed to show by
a preponderance of the evidence that the agency's reason was a pretext
for unlawful discrimination. Even if the FMLA request was a request
for a reasonable accommodation, we find that complainant failed to show
that he submitted the necessary documentation to show that his purported
disability required him to take leave on a particular day. Furthermore,
at all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's finding of 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
May 22, 2009
__________________
Date
2
0120072036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013