01A12154_r
09-19-2002
Frank Pignatelli, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Pignatelli v. United States Postal Service
01A12154
September 19, 2002
.
Frank Pignatelli,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12154
Agency No. 4-A-105-0086-00<1>
DECISION
Complainant's appeal consists of two complaints, filed on September
6, 2000, and December 8, 2000, that were consolidated by the agency.
Therein, complainant claimed discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Agency No. 4-A-105-0086-00
On June 20, 2000, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
On September 6, 2000, complainant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases of
sex, age, disability and in reprisal for prior protected activity when
he was sent for a fitness-for-duty examination and was not afforded a
modified clerk position.
The agency dismissed this complaint on the grounds of untimely EEO
Counselor contact and on the alternative grounds that it states the same
claim that is pending or has been decided by the agency or Commission.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action.
Upon review, the Commission determines that the record supports a finding
that the alleged discriminatory events occurred on May 5, 1997 and May 12,
1997, but that complainant did not contact an EEO Counselor until July
20, 2000, which is well beyond the forty-five day limitation period.
Complainant has not expressly identified any alleged incident of
discrimination that occurred within forty-five days of his initial EEO
Counselor contact. Therefore, we find that the agency properly dismissed
the complaint on the grounds of untimely EEO Counselor contact.
Because we affirm the agency's dismissal of this complaint for failure
to timely contact an EEO Counselor, we find it unnecessary to address
the agency's alternative dismissal grounds.
Agency No. 4-A-105-0019-01
In a complaint filed on December 8, 2000, complainant claimed that he
was the victim of unlawful employment discrimination on the bases of age,
disability and in reprisal for prior protected activity when:
on October 27, 2000, complainant was sent home prior to the end of his
tour of duty and was not told when he could return to work; and
complainant's supervisor's made continual comments that complainant's
4-hour disability schedule is �killing his budget.�
On January 5, 2001, the agency issued its final decision dismissing the
complaint for failure to state a claim.
On appeal, complainant argues that this complaint was improperly
dismissed. In response, the agency restates the position it took in
its final decision, and requests that we affirm its final decision.
Regarding claim 1, the agency noted that although complainant was sent
home on October 27, 2000, he nonetheless was paid for that day, as well
as having received full pay from
October 30, 2000 through November 6, 2000. Regarding claim 2, the agency
argues that complainant was not rendered aggrieved by this incident.
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 or disabling condition. 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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that the agency properly dismissed claim (1) for
failure to state a claim. The record reveals that complainant received
full pay for October 27, 2000, the day he was sent home prior to the
end of his tour, as well as having received full pay from October 30,
2000 through November 6, 2000. Further, there is no evidence in the
record that complainant sustained any personal harm or loss as a result
of the alleged incident. The agency's decision to dismiss claim (1)
is therefore AFFIRMED.
Regarding claim (2), the Commission determines that the alleged incident
does not allege a personal loss or harm regarding a term, condition or
privilege of complainant's employment. The Commission has consistently
held that a remark or comment unaccompanied by concrete action is not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. Henry v. USPS, EEOC Request
No. 05940695 (February 9, 1995). The agency's dismissal of this claim
is AFFIRMED.
In summary, the agency's dismissal of the instant complaint was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 19, 2002
__________________
Date
1 This appeal addresses two separate
complaints: Agency Nos. 4-A-105-0086-00 and 4-A-105-0019-01, that were
consolidated by the agency under Agency No. 4-A- 105-0086-00.