Louis J. Lucrezia, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01a35260 (E.E.O.C. Dec. 30, 2003)

01a35260

12-30-2003

Louis J. Lucrezia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Louis J. Lucrezia v. United States Postal Service

01A35260

December 30, 2003

.

Louis J. Lucrezia,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A35260

Agency No. 4H-327-0183-03

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated September 4, 2003, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

On June 16, 2003, complainant contacted the EEO office claiming that he

was discriminated on the bases of age and disability. Informal efforts

to resolve complainant's concerns were unsuccessful. On July 9, 2003,

complainant filed a formal complaint. A fair reading of the pre-complaint

documents and the formal complaint reflect that complainant claimed that

he was subjected to discrimination when on June 14, 2003, his manager

and supervisor came to his route and, in an intimidating fashion,

demanded that he complete more work than he was capable of performing.

In his pre-counseling form, complainant further noted that he had been

subjected to other derogatory comments by management.

On September 4, 2003, the agency issued a final decision dismissing the

complaint for failure to state a claim.

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).

Here, complainant contends that he was harassed when his supervisors

question him in an intimidating manner about his route assignments and

demanded him to complete more work that he was capable of performing.

Complainant further stated that he has been previously subjected to

derogatory comments by his supervisors. The Commission has repeatedly

found that remarks or comments unaccompanied by a concrete agency

action are not a direct or personal deprivation sufficient to render

an individual aggrieved for the purposes of title VII. See Backo

v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995). Based on a review of the record, we did not find that

the alleged remarks or comments were followed by any concrete action.

Therefore, complainant was not �aggrieved� by the alleged incidents.

Moreover, a review of the record reflects that the matter in question is

insufficient to support a claim of harassment. See Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's decision to dismiss the complaint was proper

and is hereby 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

December 30, 2003

__________________

Date