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.