Mark C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 10, 20180120161873 (E.E.O.C. May. 10, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mark C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120161873 Agency No. 4K-270-0104-15 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 8, 2016, 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 November 2, 2015, Complainant filed his formal complaint alleging discrimination based on disability (Chronic Asthma) when: (1) On September 4, 2015, he was issued a Letter of Warning (LOW) for being Absent Without Official Leave (AWOL) on August 29, 2015; and (2) On August 29, 2015, his request for Family Medical Leave Act (FMLA) leave was denied. 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. 0120161873 2 Complainant also alleged discrimination based on sex (male) when: (3) On September 10, 2015, his change of schedule was denied. On November 17, 2015, 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) and (3) for investigation. After completion of the investigation of the accepted claims, the Agency stated that it transmitted a copy of the investigative report to Complainant on January 26, 2016. The Agency indicated that Complainant had 30 days within which to request an EEOC Administrative Judge hearing but he did not request a hearing. The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, 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 claims (1) and (3), 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. Management indicated that as a Sales and Service Associate, Complainant’s duties involved retail sales at the window for customers and any work needed in the back office such as performing parcel return service mail, second notices, and return to sender mail. 0120161873 3 Complainant indicated that he was diagnosed with chronic asthma in 2001, and he supplied management with medical documentation for the past 15 years. Complainant stated that the Agency accepted his medical certifications since 2001. Complainant also indicated that he also suffered from an anxiety disorder which could trigger an asthma attack. Regarding claim (1), Complainant’s first level supervisor (S1) indicated that at the relevant time, she was not aware of Complainant’s medical conditions. S1 stated that she issued Complainant the September 4, 2015 LOW at issue due to his unsatisfactory attendance on August 29, 2015, when he was issued 8 hours AWOL. Specifically, S1 indicated that on August 29, 2015, Complainant failed to notify management of his absence; and on September 3, 2015, during an investigative interview of the subject absence, when he was asked for his explanation, he told S1 that he called the unscheduled leave request hotline on that day for his absence but he did not remember what time he called. S1 found Complainant’s explanation unacceptable since all employees were aware of the requirement to notify management within a reasonable period of time when unable to report to duty as scheduled. The record reflects that under the Agency’s Employee and Labor Relations Manual, Section 665.42, Agency employees were required to notify the supervisor or proper officials for absence without permission in emergency situations, as here, as soon as possible; otherwise, the absence might be the basis for disciplinary action. Management indicated that Complainant did not call in regarding his August 29, 2015 absence at issue until that evening. Complainant does not contest this. The record indicates that Complainant’s scheduled work hours on that day were from 8:50 am to 5:20 pm. Complainant does not indicate that he was prevented from notifying management due to his emergency situation, i.e., his asthma attack and its effect, until that evening. Complainant acknowledged that his FMLA leave request for the incident was denied as described in claim (2). Here, we do not decide whether Complainant was an individual with a disability within the meaning of the Rehabilitation Act. Furthermore, we note that Complainant does not claim that he was denied a reasonable accommodation or that he was required to perform duties beyond his medical restrictions. Based on the foregoing, we find that the Agency has not discriminated against Complainant based on his disability as alleged. Regarding claim (3), Complainant’s second level supervisor (S2) indicated that he denied the requested schedule change due to a clerk shortage on Saturday. The record reflects that Complainant submitted a request to temporarily change his scheduled days off from Wednesday/Sunday to Saturday/Sunday for the period between September 19, 2015, to December 26, 2015. S2 stated that the facility did not have sufficient staffing on Saturday; thus, he could not give any clerks a scheduled day off or a change of schedule on Saturday. The only exception was, stated S2, for an identified female employee, a PS-7 Clerk (a different position level than Complainant), who was granted a change of schedule because she was needed at the facility from Monday through Friday. Complainant fails to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. 0120161873 4 It appears that Complainant is also alleging that the Agency’s actions in his complaint created harassment. However, upon review, we find that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. 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). 0120161873 5 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 (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 Copy with citationCopy as parenthetical citation