01A44856
11-29-2004
Stuart S. Deutsch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stuart S. Deutsch v. United States Postal Service
01A44856
November 29, 2004
.
Stuart S. Deutsch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44856
Agency No. 4A110013403
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. In a complaint dated October 31, 2003, complainant
alleged that he was subjected to discrimination on the bases of religion
(Jewish), disability, and reprisal for prior EEO activity when on August
16, 2003, complainant's request for sick leave was denied. The agency's
decision, dated January 12, 2004, dismissed the complaint for failure
to state a claim and on other grounds. The Commission in our decision
Stuart Deutsch v. United States Postal Service, EEOC Appeal 01A42048
(May 19, 2004) vacated the agency's decision and remanded the complaint
to the agency for a supplemental investigation to show the disposition
of the complainant's request for sick leave and the issuance of a new
decision either dismissing the complaint or issuing a letter accepting
the complaint for investigation. This is an appeal from the agency's
decision dismissing the complaint. We affirm the dismissal.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The record shows that the
complainant was paid for 8 hours of work on August 16, 2003 and is
therefore not aggrieved. In addition, our records also show that the
complainant was provided notice that the Commission had determined that
the agency complied with our prior order. Accordingly, the agency's
final decision dismissing complainant's complaint 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
November 29, 2004
__________________
Date
***FOR OFO INTERNAL CIRCULATION ONLY***
PROCEDURAL CASES
INITIAL
DATE REVIEWED
TO: CARLTON M. HADDEN, DIRECTOR,
OFFICE OF FEDERAL OPERATIONS
HILDA RODRIGUEZ, DIRECTOR,
APPELLATE REVIEW PROGRAMS
APPEAL NUMBERAGENCY NUMBERREQUEST NUMBERHEARING NUMBER01A448564A110013403
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL
TITLE
NAMES
INITIAL
DATE REVIEWED
ATTORNEY:
Gale Black
11/16/04
SUPERVISOR:
Mary Jean Secoolish
DIVISION DIR:
Marie Fitzgerald
COMPLAINANT(S):
Stuart S. Deutsch
AGENCY:
United States Postal Service
DECISION:
Affirmed
STATUTE(S)
Title VII and Rehabilitation Act
BASIS(ES):
AO, HP, and OR
ISSUE(S):
L2
TYPIST/DATE:
GB2/11/16/04
SPELL CHECK
Yes
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
OTHER CLOSURE CODES
X 3K - Procedural Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance Required
? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed
Revised 4/30/02
Appellate Review Program Companion Case Checklist
COMPLAINANT
AGENCY
Appeal/Request/Petition No.
Stuart S. Deutsch
United States Postal Service
01A44856
OPEN
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
CLOSED
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
Gale Black 11/16/04
______________________ _______________
ATTORNEY DATE