01A45222
11-03-2004
Paul D. Testa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul D. Testa v. United States Postal Service
01A45222
11-03-04
.
Paul D. Testa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45222
Agency No. 4E-970-0007-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. According to the agency's decision dated June 21,
2004, complainant alleged that he was subjected to discrimination on the
bases of sex (male) and disability (anxiety, depression) when, on April
8, 2004, he was required to either report to work or submit a medical
certification with a request for leave and threatened with being placed
in an Absence Without Leave (AOWL) status.
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).
According to complainant, on March 1, 2004, he was placed under the care
of a doctor. He maintains that he requested leave and submitted the
appropriate medical documentation to support his absence. On April 8,
2004, however, he received a letter from A-1, the Manger, Post Office
Operations. A-1 indicated that complainant had not provided her with a
leave request. As noted above, A-1's letter provided complainant with
instructions on how he could avoid disciplinary actions being taken
against him. We also note that A-1's letter indicated that complainant
had already been placed in a LWOP pay status, effective March 29, 2004.
On appeal, however, complainant indicated that he was paid at a later
date. The Commission finds that the complaint fails to state a claim
under the EEOC regulations as a result of receiving the letter from A-1.
Nothing in the record indicates that complainant suffered any harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. Complainant has failed to explain how this
incident rendered him aggrieved.<1>
Finally, the record indicates that although complainant was told he might
be placed in an AWOL status if he did not comply with A-1's directive,
such an action was never taken; consequently, we find that the agency's
proposal was a remark or comment that was unaccompanied by any concrete
agency action. These type of comments are not usually sufficient to
render an employee "aggrieved" for purposes of stating a valid employment
discrimination claim. See Nelson v. Department of Defense (Defense
Contract Audit Agency), EEOC Appeal No. 01A13907 (Sept. 25, 2001).
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
___11-03-04_______________
Date
1Complainant maintained that, �The mental
anguish along with the financial hardship imposed upon me and my family,
as a direct result of [A-1's] memo/actions was overwhelming to the point
for [sic] my seeking immediate medical attention.� A fair reading
of complainant's statement along with his request for �compensation�
would indicate that he believes he is entitled to compensatory damages.
However, the Commission has long held that, when a claim fails to
show that a complainant is aggrieved for purposes of Title VII and
the EEOC Regulations, it will not be converted into an actionable
claim merely because the complainant has requested a specific relief.
Girard v. Department of the Treasury, EEOC Request No. 05940379 (September
9, 1994).