01990242
07-06-2000
Elizabeth Tillman-Cammon, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elizabeth Tillman-Cammon, )
Complainant, )
)
) Appeal No. 01990242
) Agency No. 4-C-442-0166-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's September 4, 1998 decision
dismissing one of two claims raised in complainant'sn of the complaint on
the basis of failure to state a claim is proper pursuant to 64 Fed. Reg,
37,644, 37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(1)).<1>
The record shows that complainant filed a formal complaint alleging
that she had been discriminated against on the bases of race, and
reprisal when:
(1) on March 21, 1998, she was issued a letter informing her that
because she was on extended detail to the Fairlawn OH postal station
her electronic mail (e-mail) was suspended on the Akron District LAN
and that she should use the Fairlawn OH email address; and
(2) because of her detail to station and branch operations she was
denied the opportunity to attend a finance conference.
The agency issued a final decision dismissing claim (1) for failure to
state a claim. Claim (2) was accepted for investigation. Although
direct appeals of decisions partially dismissing a complaint are no
longer permissible under the regulations revised on November 9, 1999,
the agency has informed the Commission that claim (2) was the subject
of an agency decision on June 16, 1999. Therefore, we shall consider
the instant appeal because there are apparently no remaining claims from
the instant complaint pending anywhere in the administrative EEO process.
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 (April
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. USPS, EEOC
Request No. 05900863 (October 31, 1990); Taylor v. USPS, EEOC Request
No. 05900367 (June 2, 1990)).
A review of the complaint persuades the Commission that complainant has
failed to show that she was aggrieved by being advised that her e-mail
had been suspended at one district and that she should utilize another
e-mail address. Accordingly, the dismissal of claim (1) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________
_________________________________
DATE EQUAL EMPLOYMENT
ASSISTANT
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.