0120102905
11-29-2010
Kenneth L. Watkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Kenneth L. Watkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120102905
Agency No. 4C430004910
DECISION
On July 2, 2010, Complainant filed a timely appeal with this Commission from the Agency's decision dated June 25, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow, the Commission AFFIRMS the Agency's dismissal of the complaint.
ISSUE PRESENTED
The issue presented in this appeal is whether the Agency properly dismissed Complainant's complaint on the grounds that he failed to state a claim.
BACKGROUND
After contacting an EEO counselor on April 30, 2010, Complainant filed a formal complaint on June 9, 2010, alleging that the Agency discriminated against him on the bases of race (African American) and disability (cancer survivor, nerve damage) when, on April 1, 2010, the Agency, through his supervisor (S1), denied his request for leave under the Family Medical Leave Act (FMLA) and required medical documentation to support his request. Subsequently, the Agency dismissed his complaint pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a). In its decision, the Agency asserted that disputes involving application of the FMLA are not within the jurisdiction of the Commission; instead, they must be brought to the attention of the Department of Labor's Wage and Hour Division (WHD).
ANALYSIS AND FINDINGS
The Commission's regulations mandate that agencies accept complaints from aggrieved employees or applicants for employment who believe that an agency has discriminated against them because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103; � 1614.106(a). The Commission's federal sector case precedent defines an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege or employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission agrees with the Agency and finds that the complaint fails to state a claim. In general, the WHD has jurisdiction over complaints regarding application of the FMLA. The Commission has jurisdiction where a Complainant alleges discriminatory application of FMLA provisions based on the employee's membership in a protected class. See Cyncar v. USPS, EEOC Appeal No. 0720030111 (February 1, 2007). Complainant has not made this claim; instead, he alleged that S1 failed to sign his leave slip and requested medical documentation. Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed.
CONCLUSION
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's dismissal of Complainant's 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
__11/29/10________________
Date
2
0120102905
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102905