Edward N. Soltis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 27, 2000
01986253 (E.E.O.C. Jan. 27, 2000)

01986253

01-27-2000

Edward N. Soltis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Edward N. Soltis v. United States Postal Service

01986253

January 27, 2000

Edward N. Soltis, )

Complainant, )

)

v. )

) Appeal No. 01986253

William J. Henderson, ) Agency No. 1-C-441-0159-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On August 15, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD), dated July 16, 1998, dismissing his

complaint for failure to state a claim.<1> The Commission accepts the

appeal in accordance with EEOC Order No. 960, as amended.

Complainant filed a formal complaint, dated July 6, 1998, claiming that

he was subjected to unlawful employment discrimination based on his age.

Specifically, complainant claimed he was discriminated against when:

on May 26, 1998, his supervisor related to him that two employees made

accusations that complainant was not performing his job up to standards.

The agency issued a FAD dismissing the complaint for failure to state

a claim. The FAD indicated that complainant had failed to provide any

evidence suggesting that he suffered a harm or loss regarding a term,

condition or privilege of his employment, as a result of the supervisor's

statement.

On appeal, complainant reiterates his claim and argues that management

has taken other actions which create stress in the workplace and

particularly affect the older employees. Complainant cites the closing

of an entrance, the allotment of an inadequate number of handicap spaces,

and a restrictive policy in the use of sick leave.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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

22, 1994).

We find that complainant has failed to indicate how he has suffered a

harm with regard to a term, condition or privilege of his employment.

By learning that coworkers allegedly accused him of not performing his

job, complainant is not rendered an "aggrieved" employee. Further, the

Commission has repeatedly found that remarks or comments unaccompanied

by a concrete agency action are not a direct and 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). Accordingly, the agency's dismissal

of the complaint for failure to state a claim was proper and is AFFIRMED.

Finally, we note that on appeal, complainant raises matters that were

not raised during pre-complaint processing or at the time that he filed

the formal complaint. Complainant is advised to contact an EEO Counselor

regarding those matters if he chooses to pursue them further.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

January 27, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.