Barbara A. Janak, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01986722 (E.E.O.C. Mar. 29, 2000)

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.