Michael Wisely, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 20, 2009
0120071182 (E.E.O.C. Mar. 20, 2009)

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