01991406_r
06-29-2001
Debbie A. Lurk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debbie A. Lurk v. United States Postal Service,
01991406
June 29, 2001
.
Debbie A. Lurk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991406
Agency No. 4E-995-0041-98
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The final agency decision was received
November 4, 1998. Complainant's appeal was postmarked December 2, 1998.
The record indicates that on May 29, 1998, complainant initiated contact
with a EEO Counselor. Complainant filed a formal complaint on October 8,
1998, alleging that she was subjected to discrimination in reprisal for
prior protected activity when she received a copy of a letter written
by the Customer Service Operations Manager. In this letter, the Manager
expressed his appreciation of subordinate supervisors' efforts in a
step 3 grievance decision, to address complainant's unsatisfactory work
performance, and noted their success in achieving a one-day suspension
on complainant's file.
On October 29, 1998, the agency issued a final decision dismissing
complainant's complaint pursuant to EEOC Regulation 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,
.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).
Upon review, we find that complainant failed to show how she
was aggrieved as a result of the Manager's written statement, and
there is no remedial relief available for complainant on this claim.
See Moreno v. Department of the Treasury, EEOC Request No. 05940139
(October 28, 1994). We find that complainant's supporting brief concerns
only speculative and possible future harm. In the supporting brief,
complainant alludes to a �potential for harm' and states that �harm did
occur and still does' but does not cite any instances to substantiate
her claims. See Stroud v. Department of the Treasury, EEOC Appeal
No. 01952101 (October 26, 1995); Spencer v. Department of the Navy, EEOC
Appeal No. 01942408 (May 27, 1994). As there is no evidence of present
injury to complainant, we determine that complainant has failed to state
a claim. Accordingly, the agency's final decision to dismiss the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 29, 2001
__________________
Date