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