0120133177
10-16-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120133177
Agency No. 1F921001713
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 26, 2013, dismissing his complaint of unlawful 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., 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Margarette Sellers Processing & Distribution Center in San Diego, California.
On June 4, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (Barbar's Disease), age (60), and reprisal for prior protected EEO activity when:
1. in February and March of 2013, management improperly denied a grievance filed by the union regarding Complainant's re-assignment to a new tour with different hours and days off; and
2. on or around February 6, 2013, management incorrectly approved Complainant's FMLA request for one day of protected leave per every six
months and then proceeded to give Complainant paid FMLA leave for more time than what was approved. 1
The Agency dismissed the claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, specifically finding that the claims constituted collateral attacks on the negotiated grievance and FMLA procedures respectively.
ANALYSIS AND FINDINGS
Upon review we find that claim 1 constitutes a collateral attack against the negotiated grievance process and that claim 2 constitutes a collateral attack against the FMLA process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for complainant to raise his challenges to actions that occurred during the negotiated grievance process and the FMLA process are generally within those proceedings themselves. Hence, we find that Complainant's claims do not state a claim.
Accordingly, the Agency's Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
October 16, 2014
__________________
Date
1 Complainant also raised the issue of denial of reasonable accommodation. The claims were bifurcated and the reasonable accommodation claim was appealed to the Merit Systems Protection Board (MSBP) as a mixed case appeal. The MSPB dismissed the complaint for lack of jurisdiction and the matter was returned to the EEO process. The denial of reasonable accommodation claim will be separately addressed under EEOC Appeal No. 0120133246. The instant appeal addresses only the two claims listed above.
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0120133177
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120133177