Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jan 30, 2013

0120113830 (E.E.O.C. Jan. 30, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120113830

Agency No. 1E-982-0027-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated June
28, 2011, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s National Distribution Center in Seattle, Washington. On June 10, 2011,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination
on the basis of his disability when on April 27, 2011, after returning to work following an
absence for a Family and Medical Leave Act (FMLA) approved condition, his supervisor
informed him that he had been placed on the “deems desirable” list and would, therefore, have
to provide medical documentation for subsequent unscheduled sick leave requests.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. Specifically, the Agency found that being required to provide medical
documentation to support future requests for sick leave does not render Complainant
aggrieved. On appeal, Complainant contends that the Agency is harassing him for taking
FMLA approved leave and that the Agency’s actions are in violation of FMLA protections.

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ANALYSIS AND FINDINGS

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. 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, 1614.106(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 does not
allege that he has been denied sick leave, nor has he alleged that he was issued any discipline
in connection with his FMLA approved sick leave requests. As such, we find that Complainant
has not shown that he has suffered a present harm or loss with respect to a term, condition, or
privilege or employment.

In addition, to the extent that Complainant is alleging a hostile work environment, we find that
the action alleged, even if proven to be true, would not establish that Complainant has been
subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his
employment. See Cobb v. Department of the Treasury, Request No. 05970077 (March 13,
1997).

CONCLUSION

Accordingly, the Agency’s dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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), at 9-18 (November 9, 1999). All requests and arguments must be
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submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court does not extend your time in which to file a civil action. Both the request and
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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

January 30, 2013
Date