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