01A45787
12-02-2004
Linda K. Halfmann, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda K. Halfmann v. United States Postal Service
01A45787
December 2, 2004
.
Linda K. Halfmann,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45787
Agency No. 4G-760-0086-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 20, 2004, dismissing 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the bases of sex (female), age (D.O.B. 8/14/50),
and reprisal for prior EEO activity when she was singled out for a
route/office check based on incorrect DOIS figures in February 2004.
The agency dismissed the complaint for failure to state a claim.
The agency found complainant was not aggrieved within the definitions
of the law because she failed to provide any evidence she suffered a
personal loss or harm with respect to a term, condition, or privilege
of employment as a result of the management actions cited in the case.
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. Dep't of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). To state a claim under the
Commission's regulations, an employee must allege and show an injury
in fact. Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer," that is, a present
and unresolved harm or loss affecting a term, condition, or privilege
of his employment. Id.
Here complainant contends that she suffered discrimination when she
was singled out for a route/office check. Complainant argues that the
check was unnecessary because she had already been subject to multiple
other route/office checks during the year and because an office-wide
check was scheduled to occur two months after the incident in question.
We agree with the agency's determination that complainant failed to
demonstrate that she suffered some tangible harm or loss with respect to
her employment. Complainant provided no evidence that the agency took
disciplinary action against her and failed to show the route/office check
in question resulted in a personal loss or harm to a term, condition,
or privilege of employment for which there is a remedy.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
December 2, 2004
__________________
Date