01986722
03-29-2000
Barbara A. Janak, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara A. Janak v. United States Postal Service
01986722
March 29, 2000
Barbara A. Janak, )
Complainant, )
)
v. ) Appeal No. 01986722
William J. Henderson, ) Agency No. 4-G-770-0483-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 1, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated July 23, 1998,
pertaining to her 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 (ADEA), as amended, 29 U.S.C. � 621 et seq. <1> Because the
agency failed to submit a copy of the certified receipt, or any evidence,
indicating the date complainant received the final agency decision, the
Commission will exercise its discretion and accept complainant's appeal
as timely. See 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified as
29 C.F.R. � 1614.402(a)). In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race (Caucasian),
color (white), sex (female), and in reprisal for prior EEO activity when:
On February 20, 1998, complainant's supervisor spoke to her in a
disrespectful manner on the workroom floor and in the office.
The agency dismissed complainant's complaint under 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(2)), on the grounds that complainant failed to file a
written complaint to an appropriate agency official within fifteen (15)
calendar days of her receipt of the Notice of Right to File Individual
Complaint. Specifically, the agency claimed that complainant received
a final interview on May 7, 1998, but did not file her formal complaint
until May 28, 1998. Alternatively, the agency dismissed complainant's
complaint under 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)), for failure to state
a claim. Specifically, the agency stated that complainant failed to
allege that she suffered any concrete harm with respect to the alleged
incident of February 20, 1998.
On appeal, complainant claims that she did timely file her formal
complaint since she states that she received the Notice of Right to
File Individual Complaint on May 19, 1998. In addition, complainant
claims that she was harmed by her supervisor's harsh overtones and
indignant mannerisms. Specifically, complainant claims that her right
to privacy was violated, she was subjected to defamation of character,
and she states that she suffered stress and humiliation as a result of
her supervisor's behavior.
The record contains a copy of the Notice of Right to File Individual
Complaint with Certified Article Number P 334 883 558, as well as an
envelope with a postmarked date of May 19, 1998, containing the Certified
Article Number P 334 883 558. The record also contains a certified
receipt for Article Number P 334 883 556, which was signed for on May 7,
1998, and appears to be the receipt relied on by the agency in finding
the complaint untimely.
In the present case, we find that the agency's dismissal of complainant's
complainant for failure to file the formal complaint in a timely manner
was improper. The record does not indicate the date complainant received
the Notice of Right to File. The receipt submitted by the agency does
not correspond with the certified article number contained on the Notice
of Right to File. Furthermore, the record indicates that the Notice
was postmarked May 19, 1998. Therefore, complainant clearly could not
have received the Notice on May 7, 1998, prior to the postmark date.
Therefore, we find that the agency's dismissal of the complaint as
untimely was improper.
With regard to the agency's argument that complainant failed to state a
claim, we find that the agency's dismissal was proper. While complainant
alleges that she was subjected to defamation of character, we find
that the alleged remark made by her supervisor involved a single
incident that occurred once on the work room floor and at the office.
We note that the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). In the present case,
complainant does not allege that any concrete action occurred with
respect to the alleged February 20, 1998 incident. Therefore, we find
that complainant failed to state a claim.
Accordingly, the agency's decision to dismiss complainant's complaint
for failure to state a claim was proper and 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 29, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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.