Sandra K. Beall, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 7, 1999
01981347 (E.E.O.C. Jan. 7, 1999)

01981347

01-07-1999

Sandra K. Beall, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sandra K. Beall v. United States Postal Service

01981347

January 7, 1999

Sandra K. Beall, )

Appellant, )

)

v. ) Appeal No. 01981347

) Agency No. 1-G-731-1042-94

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency's April 21, 1997 decision dismissing

appellant's complaint is proper pursuant to the provisions of 29

C.F.R. �1614.107(a).

Appellant filed the present complaint on September 15, 1994, and alleged

that she had been discriminated against on the bases of race (Caucasian),

sex (female), age (51), physical disability (toxic chemical exposure),

mental disability (toxic chemical exposure) and reprisal for prior EEO

activity when on June 27, 1994, she became aware that the Manager of Human

Resources is also the Senior EEO Complaints Processing Specialist, which

creates a conflict of interest for her concerning her chemical exposure

and the filing of EEO complaints. The record shows that appellant has

raised this allegation in two subsequent formal EEO complaints: Agency

Case No. 1-G-731-0005-97, filed on January 28, 1997, and Agency Case

No. 1-G-731-1026-95, filed on August 30, 1995.

A review of the allegation raised by appellant in the present complaint

persuades the Commission that the present complaint should have been

dismissed pursuant to 29 C.F.R. �1614.107(a) for failure to state a

claim under EEOC Regulations. An agency shall accept a complaint from

any aggrieved employee or applicant 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 has held that while the regulations do

not define the term "aggrieved employee," the United States Supreme

Court has interpreted it to mean an employee 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 (Apr. 21, 1994). "To state a claim under

our regulations, an employee must allege and show an injury in fact."

Id. (citing Hackett v. McGuire Bros., 445 F.2d 447 (3d Cir. 1971)).

"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/her employment." Id. (citing Hammonds v. United States Postal Serv.,

EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United States

Postal Serv., EEOC Request No. 05900367 (June 2, 1990)). A review of

appellant's allegation persuades the Commission that she has failed

to show that she was aggrieved. Accordingly, the agency's decision

dismissing the complaint is AFFIRMED.

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. �l6l4.604(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 consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (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:

January 7, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations