Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120151035 Agency No. 1C-441-0055-14 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 8, 20151, 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. BACKGROUND During the period at issue, Complainant worked as a Mailhandler at the Agency's facility in Akron, Ohio. On December 22, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior protected EEO activity. In its final decision, the Agency determined that Complainant's complaint was comprised of the following claim: On September 16, 2014, [Complainant was] informed that [he] had exhausted [his] 12 week entitlement to protected leave under the Family and Medical Leave Act (FMLA) when [he] took leave between March 25, 2014, and June 1, 2014. The Agency dismissed Complainant's complaint for failure to state a claim. The Agency reasoned that this was a collateral attack on the FMLA process which is governed by the Department of Labor (DOL). The instant appeal followed. On appeal, Complainant requests that we reverse the Agency's dismissal. Complainant asserts that he did not request FMLA certification. Complainant also appears to be alleging, on appeal, that he was denied a reasonable accommodation. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint for failure to state claim. While Complainant, on appeal, appears to be asserting that he was denied a reasonable accommodation, he did not raise this claim in his formal complaint.2 A review of Complainant's formal complaint and pre-complaint documents reflect that he is alleging that the Agency improperly designated leave he took in Spring 2014 as FMLA. As a remedy, Complainant is requesting that his FMLA leave be restored. The Commission has held that 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. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the FMLA process is within that forum. The FMLA is governed by the Department of Labor. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the FMLA process. We AFFIRM the Agency's final decision dismissing the formal complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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), at 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 (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 (Z0610) 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 2, 2015 __________________ Date 1 We note that the Agency's final decision is dated January 8, 2014. However, this appears to be a typographical error; since, the formal complaint was filed on December 22, 2014. 2 To the extent, Complainant is now alleging that the Agency is denying him a reasonable accommodation, he should contact an Agency EEO Counselor, if he wishes to pursue this matter through the EEO process. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151035 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120151035