Ivan J. Crisostomo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 12, 2009
0120090473 (E.E.O.C. Mar. 12, 2009)

0120090473

03-12-2009

Ivan J. Crisostomo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ivan J. Crisostomo,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090473

Agency No. 4F940019308

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated September 24, 2008, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.

In his EEO complaint, complainant alleged that he was subjected to

discrimination on the basis of disability (diabetes) when, on or around

June 13, 2008, his request for FMLA protected sick leave for June 9,

2008, was denied.

Upon review, the Commission affirms the agency's dismissal of the

complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure 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. 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 EEO process is not the proper forum for alleging violations of

the Department of Labor's FMLA regulations. We note that the sole issue

in this complaint is the denial of FMLA leave and complainant sought

in relief, "[a]pproval of his FMLA coverage request". Upon review,

we find in this case that the EEO complaint process is not the proper

venue for complainant's claim regarding FMLA. We note that complainant

has not asserted that the FMLA leave would constitute a reasonable

accommodation. As such, we find that the claim raised in the complaint

is an improper collateral attack on the FMLA system which should have

been raised within the appeals processes provided for in that system.

Accordingly, the agency's dismissal of the 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

March 12, 2009

__________________

Date

2

0120090473

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120090473