0120091255
05-07-2009
Bruce C. Webster, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bruce C. Webster,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091255
Agency No. 1A102006708
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 12, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated November 30, 2008, complainant
alleged that he was subjected to discrimination on the basis of reprisal
for prior protected EEO activity when:
1. On August 25, 2008, complainant's request for Family Medical Leave Act
(FMLA) protection for his leave was denied;
2. On September 8, 2008, he was denied a copy of the Independent Medical
Examiners report; and
3. On September 15, 2008, complainant was subjected to unspecified
harassment.
The Commission finds that with respect to complainant's FMLA rights,
the complaint fails to state a claim under the EEOC Regulations. The
Commission has held that an employee cannot use the EEO complaint process
to lodge a collateral attack on another proceeding. The Commission
further finds that the complaint fails to state a claim under the EEOC
regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Specifically, the record
indicates that complainant's request for FMLA protection was denied,
however, complainant was permitted to take leave for the time period
he requested. Complainant takes issue with the fact that his leave
was not approved under the protection of the FMLA The proper forum for
complainant to have raised his challenges is with the Department of Labor.
It is inappropriate now to attempt to use the EEO process to collaterally
attack the agency's action. Moreover, with respect to claim 2 regarding
the agency's denial of the Independent Medical Examiners report, we find
that complainant has failed to state a claim regarding an injury to a
term, condition or privilege of his employment.
Turning now to claim 3 regarding complainant's harassment claim, the
Commission finds that complainant has failed to demonstrate that agency
conduct affected the terms and conditions of his employment. In that
regard, we find that the agency's decision dismissing claim 3 because
it failed to state a claim was proper. Accordingly, the agency's final
decision dismissing complainant's complaint 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
__________________
Date
May 7, 2009
2
0120091255
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091255