05980661
10-01-1998
Barbara Janak, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara Janak v. United States Postal Service
05980661
October 1, 1998
Barbara Janak, )
Appellant, )
) Request Nos 05980661 et al.<1>
v. ) Appeal Nos. 01974098 et al.
) Agency Nos. 4G-700-1486-96 et al.
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUESTS FOR RECONSIDERATION
In April and May 1998, Barbara Janak (appellant) initiated nearly
identical requests to the Equal Employment Opportunity Commission (EEOC)
to reconsider the decisions in Janak v. USPS, as set forth in footnote
one of this decision. EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision
is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3). Appellant's requests are denied.
The record indicates that all of the complaints at issue herein
were dismissed by the agency for either failure to contact the EEO
counselor in a timely manner or for failure to timely file an EEO
complaint. Appellant received the agency's final decisions on these
complaints between November 1996 and January 1997. Appellant appealed
all of the dismissals to the Commission on April 23, 1997. As a result,
all of the appeals were dismissed for untimeliness.
The decision on appeal number 01974091 was issued on February 18,
1998 and appellant filed that request on April 6, 1998. All of the
other decisions were issued on December 12, 1997. Appellant filed her
requests for reconsideration for all of the remaining appeals on April
13 and 14, 1998 as well as May 11 and 12, 1998. The Commission notes that
with the exception of 01974089, which was mailed to appellant a second
time and received by her on April 13, 1998, none of the other green
return receipt cards showing receipt by appellant for these decisions
was received by the Commission.<2> However, cards showing receipt by
the agency in December 1997 were returned to the Commission. There is
no indication appellant's address has ever changed. In her requests,
appellant does not mention when she received the decisions.<3>
In any event, appellant argues in her requests that she thought she had
been granted extensions of time with respect to her requests for official
time. Appellant clearly had numerous complaints with the agency, and
requested official time to meet with her representative. While copies
of documents purporting to extend the time for appellant to meet with
her representative were submitted by appellant, there is nothing to
indicate in any of these requests that they were to extend any kind of
regulatory time frames for filing appeals of final agency decisions. In
all of the final agency decisions at issue herein, appellant was informed
of her right to file appeals and how to do so, so it is not clear why
appellant was attempting to continue discussing such complaints with the
agency. A complainant shall at all times be responsible for proceeding
with a complaint whether or not she has designated a representative. 29
C.F.R. �1614.605(e). In addition, the Commission notes that appellant
is well versed in the filing of EEO complaints, given the numerous
complaints filed with the Commission. Appellant has failed to submit
justification for extending the time frames for filing her appeals.
After a review of appellant's requests for reconsideration, the previous
decisions, and the entire records, the Commission finds appellant's
requests do not meet the criteria of 29 C.F.R. �1614.407(c), and
it is the decision of the Commission to deny appellant's requests.
The decisions of the Commission in the appeals identified in footnote
one remain the Commission's final decisions. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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. 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.
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:
Oct. 1, 1998
____________ ___________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
ATTACHMENT ONE
REQUEST NO. APPEAL NO. AGENCY NO.
05980661 01974098 4-G-700-1486-96
05980665 01974097 4-G-700-1485-96
05980683 01974092 4-G-700-1420-96
05980684 01974101 4-G-700-1490-96
05980685 01974100 4-G-700-1489-96
05980747 01974088 4-G-700-1417-96
05980755 01974091 4-G-700-1419-96
05980763 01974093 4-G-700-1482-96
05980764 01974095 4-G-700-1483-96
05980765 01974089 4-G-700-1418-96
05980772 01974090 4-G-700-0008-97
05980773 01974096 4-G-700-1484-96
1This decision encompases twelve requests for reconsideration set forth
below as Request No. (Appeal No.) (Last four digits of Agency No.):
05980661 (01974098) (1486-96), 05980665 (01974097) (1485-96), 05980683
(01974092) (1420-96), 05980684 (01974101) (1490-96), 05980685 (01974100)
(1489-96), 05980747 (01974088) (1417-96), 05980755 (01974091) (1419-96),
05980763 (01974093) (1482-96), 05980764 (01974095) (1483-96), 05980765
(01974089) (1418-96), 05980772 (01974090) (0008-97), and 05980773
(01974096) (1484-96).
2See also Janak v. USPS, Request Nos, 05980681, 05980682 and 05980774,
which is being issued contemporaneously.
3Appellant has filed approximately 49 appeals and 17 requests for
reconsideration since November 1995. Of the requests for reconsideration
(including those at issue here), 15 involved the failure to either contact
the EEO counselor in a timely manner, failure to file a timely complaint,
and failure to state a claim. The Commission cautions appellant that it
retains the right to protect its processes and procedures from misuse and
abuse. However, at present, the Commission will not find that appellant is
abusing its processes. See Kleinman v. USPS, EEOC Request No. 05940579
et al. (September 22, 1994); Buren v. USPS, EEOC Request No. 05850299
(November 18, 1985),