0120091965
08-26-2009
Terry B. Braaten, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terry B. Braaten,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091965
Agency No. 4E-800-0025-09
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 5, 2009, 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. 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.
On November 17, 2008, complainant initiated EEO contact alleging that
the agency treated him disparately and subjected him to a hostile work
environment on the basis of disability (neck, back and hip injuries).
Specifically, complainant alleged that, between May 10, 2007 and January
7, 2008, the agency required him to attend four Family and Medical Leave
Act (FMLA) evaluations without cause; between August 16, 2007 and July 7,
2008, it delayed and denied his FMLA requests on numerous occasions; and,
after the denial of his FMLA requests, it issued him disciplinary actions.
In a formal EEO complaint dated February 11, 2009, complainant alleged
that the agency discriminated against him based on disability when it
improperly denied his FMLA certification. Complainant noted that he
included incidents that occurred more than 45 days prior to his initial
EEO contact date as background only.
In its March 5 dismissal, the agency stated that FMLA falls within the
jurisdiction of the Department of Labor and that an EEO complaint based
on FMLA matters lodges a collateral attack on that forum. The instant
appeal from complainant followed, without substantive comment.
After a careful review of the record, we agree with the agency's
dismissal of complainant's claim. The regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides, in pertinent part, that an agency shall
dismiss a complaint that fails to state a claim. Complainant's claim
challenges the process for another forum and constitutes a collateral
attack upon that process, and therefore fails to state a claim. See Wills
v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994).
Such an attack is not actionable under EEO statutes. The proper forum
for complainant to have raised his challenges to actions which occurred
during the FMLA process is within that process itself. Accordingly,
we AFFIRM the final agency decision dismissing complainant's complaint.
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
August 26, 2009
__________________
Date
2
0120091965
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091965