01974094
09-10-1999
Barbara Janak, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara Janak v. United States Postal Service
01974094
September 10, 1999
Barbara Janak, )
Appellant, )
) Appeal No. 01974094
v. ) Agency No. 4-G-770-1593-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION
Appellant timely<1> filed an appeal with the Commission from a final
decision of the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq, and the Age Discrimination in Employment Act
of 1967, 29 U.S.C. � 621 et seq. The appeal is accepted in accordance
with EEOC Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).
The issue presented is whether appellant was harassed by her supervisor
on May 4 and 5, 1995, because of her race and color (white), gender,
and age (54). Appellant alleged that her immediate supervisor harassed
her regarding the performance of her job duties and the fact that she
sometimes requested assistance to complete her delivery route.
The Commission identifies two types of harassment that could result in
liability: harassment that results in a tangible employment action; and
harassment that creates a hostile work environment. Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors,
EEOC Notice No. 915.002 (June 18, 1999). In this case, there are no
indications that the supervisor issued a letter of warning or took
any other official action regarding her conferences with appellant
on May 3 and 4, 1995. Consequently, the tangible-action prong of the
analysis is not applicable in this case. To prevail on her harassment
claim, appellant would have to show that she was subjected to a
hostile work environment because of her race, color, gender, or age.
See Frye v. Department of Labor, EEOC Request No. 05950152 (February
8, 1996); deLange v. Department of State, EEOC Request No. 05940405
(March 3, 1995). Unless the conduct complained of is severe, however,
a single incident or group of isolated incidents will not be regarded
as discriminatory harassment. Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996).
In her affidavit, appellant stated that her supervisor called her into
the office on May 3 and 4, 1995, made negative remarks about how she
cased and delivered mail, and threatened her with disciplinary action.
The supervisor denied that she threatened appellant, and reiterated
that the sessions constituted a "pre-disciplinary" interview for poor
job performance. The supervisor stated in her affidavit that appellant
cased her mail very slowly, that she continued to leave her case, and
that she stopped after a few letters to make corrections, which slowed
her down even more. The supervisor emphasized that the remarks she made
were her own observations of appellant's poor work habits. She also
noted that she asked appellant why she needed four hours of assistance
from a carrier to case less than five feet of mail. Appellant has not
presented any documents or testimony, either in the investigative file or
on appeal, which corroborates her version of events, or which contradicts
the supervisor's testimony or undermines the supervisor's credibility as
a witness. We therefore find that the supervisor's actions on May 3 and
4, 1995, were isolated incidents that were neither severe nor pervasive
enough to constitute discriminatory harassment.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
September 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency's final agency decision is dated October 25, 1996. Appellant
filed her appeal on April 28, 1997. She claims that she did not receive
the agency's decision until April 7, 1997. In an appeal statement dated
April 18, 1997, appellant appears to be asking for an extension of time
to file an appeal on this and other cases that she has in the system. The
agency has not produced a copy of the certified return receipt
corresponding to its final decision on Complaint No. 4-G-770-1593-95. We
therefore accept appellant's appeal on this complaint as having been
timely filed. As Complaint No. 4-G-770-1593-95 is the only matter now
before us, we make no ruling on the timeliness or untimeliness of any of
appellant's other appeals.