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

Equal Employment Opportunity CommissionSep 10, 1999
01974094 (E.E.O.C. Sep. 10, 1999)

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.