0120101449
06-10-2010
Deborah West, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Deborah West,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101449
Agency No. 1H-301-0063-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 11, 2010, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
In the instant complaint, filed on December 23, 2009, complainant alleged
that she was subjected to discrimination on the bases of sex, disability
and in reprisal for prior EEO activity when:
On May 19, 2009, she became aware several of her requests for Family
Medical Leave (FMLA) protected leave without pay were input as leave
without pay without FMLA protection.
In its January 11, 2010, the agency dismissed the instant complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The agency noted that complainant alleged that her supervisor removed
her FMLA protection from several dates she called in leave without pay.
The agency determined that complainant does not alleged she suffered any
harm by the leave not being coded as FMLA nor does she allege she was
disciplined or any other term, condition or condition of her employment
was affected by the FMLA code.
On appeal, complainant argues that the instant complaint the agency
dismissed was "not what I filed. I filed a EEO complaint about
[Supervisor] in regards to the removal of my FMLA leave from the postal
system eight (8) times when I called in for illness related to my
documented FMLA condition."
The Commission determines that the agency properly dismissed the instant
complaint for failure to state a claim. We find that complainant's claim
constitutes a collateral attack on 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 Willis 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 have raised her challenges
to actions which occurred during the FMLA process was within that forum
itself. It is inappropriate to now attempt to use the EEO process to
collaterally attack actions which occurred during the FMLA process.
Furthermore, the alleged agency action was not of a type reasonably
likely to deter complainant or others from engaging in protected activity.
Moreover, the alleged incidents, even considered together, do not state
a viable hostile work environment claim. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997).
The agency's final decision dismissing the instant complaint for failure
to state a claim 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
June 10, 2010
__________________
Date
2
0120101449
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101449