[Redacted], Thad P, 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2021002632 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thad P,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2021002632 Hearing No. 570-2020-00569X Agency No. DOS-0264-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 2, 2021, dismissing a formal complaint alleging 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., BACKGROUND During the relevant time, Complainant worked for the Agency as a Management Analyst, FS-04, in Washington, D.C. On June 26, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on sex (male) when the Agency: 1. failed to inform him of his right to take Family and Medical Leave Act (FMLA) leave for his spouse; 2. requested that he return to work while on FMLA leave; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021002632 3. required him to invoke FMLA leave; 4. retaliated against him for invoking FMLA leave by placing him in a non-pay status; 5. failed to timely submit his FMLA forms; and 6. changed his work schedule when he returned from FMLA leave. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge, (AJ). Complainant timely request a hearing. On December 11, 2020, the assigned AJ issued a Notice of Proposed Dismissal for failure to state a claim. Despite Complainant’s formal objection, the AJ subsequently issued a Decision and Order Entering Judgment on January 26, 2021dismssing the instant matter pursuant to EEOC Regulation 29 C.F.R. § 1614.107 (a)(1). Specifically, the AJ determined that Complainant's complaint was a collateral attack on the Department of Labor’s adjudication of his FMLA rights. This appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, including challenges to decisions pertaining to the Family and Medical Leave Act (“FMLA”) Stensgard v. United States Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral attack on the FMLA process, which is regulated by the Department of Labor, and outside the jurisdiction of the EEOC). 3 2021002632 Complainant alleges, in essence, that the Agency subjected him to discrimination in reprisal for invoking FMLA. The proper forum for Complainant to have raised his challenges to the alleged actions of the Agency that purportedly interfered with his FMLA rights was the Department of Labor, which has jurisdiction over the FMLA, rather than with an EEO complaint. The Commission has no jurisdiction over claims based on the FMLA. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral attack on the FMLA process, which is regulated by the Department of Labor, and outside the jurisdiction of the EEOC). Therefore, we find that the AJ properly dismissed these events from Complainant's claim of harassment pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. CONCLUSION The Agency's final order adopting the AJ’s Decision and Order Entering Judgment dismissing the complaint for the reasons discussed above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 4 2021002632 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 5 2021002632 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 21, 2021 Date