U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liza B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120160373 Agency No. 1G-761-0025-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 17, 2015, dismissing her 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., and 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 Flat Sorter Machine Clerk at the Agency's Fort Worth, Texas Processing and Distribution Center. On May 20, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 29, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race/color (Caucasian/white), sex (female), disability and in reprisal for prior EEO activity when, on April 8, 2015, she received notification (dated March 3, 2015) from the U.S. Department of Labor, Wage and Hour Division, that indicated that the Agency "violated" the Family and Medical Leave Act (FMLA) by "failing to approve [her] request for leave taken under existing FMLA coverage." The letter went on to state that the Agency "would not agree to a settlement." The letter concluded by explaining Complainant's rights to pursue a private action in court to pursue her FMLA rights. In its September 17, 2015 final decision, the Agency dismissed Complainant's complaint for failure to state a claim, pursuant to § 1614.107(a)(1). The Agency reasoned that this was a collateral attack on the FMLA process which is governed by the Department of Labor. The instant appeal followed. On appeal, Complainant argues, "I am not challenging the FMLA regulations with the EEO [complaint], but the discriminatory retaliation because of prior EEO activity and of race, sex, color, and disability when HRSSC FMLA Specialists and Agency's representatives required only me and not my fellow co-workers and others to, 'provide dates of all in office visits if any for the past 12 months and whether patient will need to have treatment visit at least twice yearly due to the condition.'" ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint). In the instant case, it is clear that Complainant's complaint concerning the denial of her FMLA leave was firmly enmeshed in the Department of Labor's investigatory/adjudicatory process. While Complainant is not contesting the actions of the Department of Labor, as they determined her claim of a violation of the FMLA had merit, she has been informed that the next step in that process is to file a private action in court. The proper forum for Complainant to continue to pursue her FMLA claim is within that process itself, and not through the EEO complaint process. The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.2 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (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. 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 February 9, 2016 __________________ Date 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 Because we affirm the Agency's dismissal of the instant complaint for the reason stated herein, we find it unnecessary to address alternative dismissal grounds. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160373 4 0120160373 5 0120160373