Paul D. Testa, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 3, 2004
01A45222 (E.E.O.C. Nov. 3, 2004)

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).