0120101183
06-15-2010
Jasvir Khosa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101183
Agency No. 1F937000310
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 7, 2010, 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.
BACKGROUND
In a complaint dated December 8, 2009, Complainant alleged that he was
subjected to discrimination on the bases of race (East Indian), national
origin (unspecified), religion (unspecified), color (unspecified),
and reprisal for prior protected EEO activity when:
On October 19, 2009, Complainant left work early because he was ill
and requested sick leave under the Family and Medical Leave Act (FMLA),
Complainant's manager (M1) requested that Complainant provide medical
documentation.
The Agency dismissed the complaint for failure to state a claim, on the
grounds that the complaint was in essence a collateral attack on FMLA
proceedings, which fall within the purview of the Department of Labor
(DOL) and, accordingly, are not cognizable under EEO laws.
CONTENTIONS ON APPEAL
Complainant did not offer any comments or brief in support of this appeal.
The Agency continues to adhere to its prior position, viz., that the claim
is outside the purview of Title VII and EEO law. The issue on appeal
is whether the Agency properly dismissed the complaint on the grounds
that Complainant failed to state a claim under 29 C.F.R. � 1614.103.
FINDINGS AND ANALYSIS
EEOC regulations state that an agency may dismiss a complaint that fails
to state a claim under either 29 C.F.R. � 1614.103 or � 1614.106(a).
See 29 C.F.R. � 1614.107(a). A complainant must establish that he is
aggrieved for the purpose of satisfying these requirements; in order
to be aggrieved a complainant must allege discrimination or retaliation
of the kind prohibited by at least one of the statutes enforced by the
Commission, e.g., Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Where a complaint states a claim or claims
that are beyond the reach of at least one of the relevant EEO laws,
the Commission holds that it is proper for an agency to dismiss the
complaint for failure to state a claim. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998).
The Commission agrees with the Agency that, despite Complainant's
invocation of Title VII, Complainant's claim constitutes a collateral
attack on the FMLA process. The FMLA falls under the regulatory ambit of
the DOL, not the Commission; therefore, the Commission has no jurisdiction
over this type of claim. See, e.g., Jordan v. Department of Defense,
EEOC Appeal No. 0120055250 (December 28, 2006) ("[T]he Commission does
not have jurisdiction over FMLA claims."); cf. Lingad v. USPS, EEOC
Request No. 05930106 (June 24, 1993) ("An EEO complaint which alleges
that discriminatory actions have been taken to influence the outcome of
a decision rendered under a negotiated grievance procedure is outside
the purview of EEOC regulations and should be rejected.").
Even assuming that the claim was cognizable by the Commission, the
complaint nevertheless fails. EEOC case precedent holds that in order
to state a claim, a complainant must be aggrieved by showing an injury
to a term, condition, or privilege of employment, or, in the alternative,
by showing either severe or pervasive harassment. Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). A mere request
for additional documentation supporting a request for FMLA sick leave,
assuming arguendo that the Commission has jurisdiction over the issue,
would not amount to severe or pervasive harassment. See Emmons v. USPS,
EEOC Appeal No. 01A34815 (October 15, 2003).
Further, the Commission 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). 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
June 15, 2010
__________________
Date
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0120101183
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101183