Marian H. Naczynski, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 13, 1998
01976669 (E.E.O.C. Nov. 13, 1998)

01976669

11-13-1998

Marian H. Naczynski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Marian H. Naczynski v. United States Postal Service

01976669

November 13, 1998

Marian H. Naczynski, )

Appellant, )

)

v. ) Appeal No. 01976669

) Agency No. 1A-071-0022-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and the Age Discrimination in Employment

Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency

decision was received by appellant on September 3, 1997. The appeal

was postmarked September 8, 1997. Accordingly, the appeal is timely

(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC

Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to state a claim.

BACKGROUND

Appellant contacted an EEO counselor on April 23, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when on March 10, 1997 his request for three

(3) hours of sick leave was denied.<1> Informal efforts to resolve

appellant's concerns were unsuccessful. Accordingly, on June 25, 1997,

appellant timely filed a formal complaint of discrimination on the bases

of national origin (Polish), age (5/21/47), and retaliation (prior EEO

activity).

On August 27, 1997, the agency issued its final decision dismissing

appellant's complaint for failure to state a claim. The FAD determined

that appellant was in fact granted three (3) hours of sick leave for

March 10, 1997 and was compensated accordingly.

ANALYSIS AND FINDINGS

The agency found that appellant's complaint failed to comply with EEOC

Regulation 29 C.F.R. �1614.107(a) which states that the agency shall

dismiss a complaint that fails to state a claim under 29 C.F.R. �1614.103

or �1614.106(a). 29 C.F.R. �1614.103 provides that individual and class

complaints of equal employment discrimination and retaliation prohibited

by Title VII (discrimination on the bases of race, color, religion, sex

and national origin), the Rehabilitation Act of 1973 (disability), and the

Age Discrimination in Employment Act (discrimination of the basis of age,

when the individual is at least forty years of age), shall be processed in

accordance with Part 1614 of the EEOC Regulations. To establish standing

as an "aggrieved employee" within the context of 29 C.F.R. �1614.103,

appellant must allege, first of all, that he has been injured in fact.

In its final decision, the agency found that appellant was granted

three (3) hours of sick leave for March 10, 1997 and was compensated

accordingly. The agency indicated that it reviewed appellant's pay

records and found that appellant was in fact compensated for three (3)

hours of sick leave for March 10, 1997. The agency determined that

as such, appellant was not aggrieved pursuant to the EEOC regulations

cited above. The Commission agrees with the agency's position that

appellant failed to demonstrate that he was aggrieved and in turn failed

to establish a valid claim of discrimination prohibited by Title VII

and the ADEA. On appeal appellant makes no argument to contradict the

agency's finding that his sick leave was approved for March 10, 1997

and that he was compensated for three (3) hours of sick leave. In that

regard, the Commission determines that because appellant failed to

demonstrate that he was aggrieved with respect to a term, condition,

or privilege of employment, his allegation fails to state a claim within

the meaning of 29 C.F.R. �1614.107(a).

CONCLUSION

Accordingly, the final decision of the agency dismissing appellant's

complaint for failure to state a claim is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (MO795)

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. �1614.604(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 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. 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:

November 13, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1We note here that the complaint also contains allegations of other

incidents of discrimination not addressed by the agency in its FAD.

Because appellant has not challenged the agency's definition of his

complaint allegations, our decision in the instant matter will focus

only on appellant's sick leave allegation.