John M. Scorcia, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01991915 (E.E.O.C. Nov. 5, 1999)

01991915

11-05-1999

John M. Scorcia, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John M. Scorcia v. United States Postal Service

01991915

November 5, 1999

John M. Scorcia, )

Appellant, )

)

v. ) Appeal No. 01991915

) Agency No. HO-0171-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On March 24, 1999, the appellant filed a timely appeal with this

Commission from a corrected final agency decision (FAD) received

by his attorney on February, 27, 1999, pertaining to his complaint

of unlawful employment discrimination in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. In his complaint, the appellant alleged that

he was subjected to discrimination on the bases of mental disability

(duress and depression), age (59) and retaliation when:

agency officials altered his retirement documents, changing his

retirement date without authorization; and

agency officials failed to process a money-order which he had submitted

toward his buy back for post 1956 military retirement; thereby, causing

him to pay additional interest and penalties.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a),

for failure to state a claim. Specifically, the agency found that

allegation (1) failed to state a claim because the appellant's retirement

date was changed by the agency at his attorney's request in May 1998,

prior to the filing of this complaint. Likewise, the agency dismissed

allegation (2) because the appellant was not an employee when he received

the notice for his military buy-back and because he was not required to

pay any additional interest or penalty due to the misplaced money order.

In the appellant's appeal, his attorney asserts that the agency has

manipulated the system to further harm his client. The agency responded

to the appellant's appeal reiterating the reasons for its dismissal.

EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part,

that an agency shall dismiss a complaint, or portion thereof, 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).

In the instant case, the record shows that on March 27, 1997, the agency

received a letter from the appellant requesting the necessary paperwork

for SF-2801 (Application for Immediate Retirement) be processed with

an effective date of March 29, 1997. The record also shows that the

appellant signed a SF-2801 which contained March 27, 1997, as the date

of final separation. The record also shows that on April 2, 1997, the

agency returned the appellant's retirement papers at his request dated

March 31, 1997. On June 8, 1998, the agency responded to a May 12,

1998 letter from the appellant's attorney, stating that his retirement

date was changed from March 27, 1997, to February 17, 1998, which was

the date he signed various other retirement papers.

We find that the agency correctly dismissed allegation (1) of the

appellant's complaint for failure to state a claim because the record

shows that the appellant's retirement date was changed to the date he

requested and thus, he failed to show he suffered any harm or loss.

In allegation (2) of the appellant's complaint he alleges that the agency

failed to process a money order payment made toward his post 1956 military

buy-back for retirement purposes; thereby causing him to pay additional

interest and penalties. The record does not support this allegation.

The record shows that an estimated military buy back payment of $678.42

was due on June 10, 1996. The record also shows that on July 2, 1996,

the appellant purchased a money order for that amount endorsed to the

U.S. Postal Service for a "Post 56 Deposit." On April 2, 1998, the

appellant received a statement showing that he had a new balance of

$775.13, alerting him that his July 1996 payment had not been received.

The agency states in several documents addressed to the investigator,

that upon inquiry with the Minneapolis Accounting Service Center (MASC),

the appellant's money order which they forwarded to Minneapolis was

never received. The agency stated that it reissued the money order,

forwarded it to the MASC and assured that the payment would be credited to

the appellant's account as if it was received in July 1996. A September

16, 1998 follow-up with the MASC, done for EEO case number HO-0187-98

and included in this record, shows that MASC assured the agency that

the appellant's account was credited and that he was not charged any

additional interest or penalty.

The record includes an affidavit signed by the agency Human Resource

Specialist who had handled the appellant's post 56 military buy-back

incident. She swears that there was no intent to delay the payment or

cause the appellant to incur additional interest. Again, the appellant

has shown no evidence that he suffered any harm or loss.

The appellant's allegation that these agency actions exacerbated

a preexisting mental disability is akin to a claim for compensatory

damages. The Commission has held that, when an allegation 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 specific relief. See Girard

v. Department of the Treasury, EEOC Request No. 05940379 (September 9,

1994).

Accordingly, we AFFIRM the agency's dismissal of the appellant's complaint

for failure to state a claim.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Nov. 5, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations