Denial of FMLA Leave

The EEOC's Office of Federal Operations (OFO) recently issued a decision which would apparently leave federal employees who allege discriminatory reasons for the denial of requested leave under Family and Medical Leave Act (FMLA) without legal recourse. However, it is not clear whether the OFO properly considered the matter. In Derrick M. Hite v. United States Postal Service, Appeal No. 0120102365 (September 21, 2010), the OFO held that Hite could not use the EEO complaint process to launch a "collateral attack" on the FMLA process. A collateral attack is a legal action designed to challenge a decision in a separate legal matter.

In Hite, the complainant was a custodial group leader at the United States Postal Service district office facility in Charlotte, North Carolina. On July 31, 2008, Hite filed an EEO complaint alleging that the agency had discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII when: 1.) he was placed on emergency placement off-duty status without pay; 2.) he was issued a notice of removal which was reduced to a 7-day suspension; and 3.) when his request for leave under FMLA was denied for April 25-May 2, 2008, May 10, 2008, and May 24, 2008.

On April 16, 2010, the administrative judge (AJ) issued a decision without a hearing. With respect to the FMLA claim, the AJ did not challenge whether an FMLA claim could be adjudicated as part of the EEO process, but rather found that USPS provided sufficient reasons for denying the complainant's FMLA leave, and that Hite failed to prove that these reasons were pretext for unlawful retaliation. However, upon appeal to the OFO, the OFO held that Hite could not challenge the denial and processing of his FMLA leave request in the EEO process. The OFO ruled that the FMLA process falls under the regulations of the Department of Labor and that the EEOC had no jurisdiction to hear Hite's claim.

As authority for its decision in Hite, the OFO cited Wills v. Dept. of Defense, EEOC Request No. 05970596 (July 30, 1998) (concerning a collateral attack on a criminal investigation decision); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994) (concerning a collateral attack on an EEO investigation); and Lingad v. USPS, EEOC Request No. 05930106 (June 25, 1993) (concerning a collateral attack on an arbitration hearing and decision). None of these three cases concerns FMLA. Moreover, a recent OFO decision further calls into question the legal soundness of the Hite decision. In Watkins v. USPS, Appeal No. 0120102905 (November 29, 2010), the OFO made the crucial distinction that although the Dept. of Labor's wage and hour division has jurisdiction over complaints regarding the application of FMLA, the EEOC has jurisdiction where a complainant alleges discriminatory application of FMLA provisions based on the employee's membership in a protected class.

It appears that the OFO in Hite failed to make the distinction that it did in Watkins, as Hite alleged discriminatory animus as the basis for the denial of his request for FMLA leave, namely that his FMLA leave was denied on the basis of retaliation for prior EEO activity. All federal employees should be aware of their rights under Title VII with respect to FMLA, workers' compensation, and other benefits. If an employee properly alleges that FMLA or any other right has been denied based upon illegal discrimination, the EEOC should have jurisdiction to hear the claim. This is especially important under FMLA where federal employees have no right to judicial review as opposed to private, state and local government employees.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.