01990117
10-20-1999
Barbara Janak, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barbara Janak v. United States Postal Service
01990117
October 20, 1999
Barbara Janak, )
Appellant, )
)
v. ) Appeal No. 01990117
) Agency No. 4-G-770-0485-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated June 17, 1998, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision identified two allegations of discrimination
based on race, color, sex, age, and retaliation: (1) on February 5, 1998,
the appellant did not receive official time to process EEO complaints in
a timely manner; and (2) the agency's EEO office failed to assist the
appellant and gave the appellant erroneous information on time limits,
resulting in her EEO complaints being untimely appealed. The agency
accepted allegation 1 for investigation and dismissed allegation 2 for
failure to state a claim of employment discrimination.
The Commission affirms the agency's dismissal of allegation 2. The
appellant's complaint concerns the agency's treatment of her in the EEO
process, not in the terms, conditions, or privileges of her employment.
Accordingly, the Commission finds that the appellant's complaint does
not state a claim of employment discrimination. To the extent that
the agency's actions allegedly adversely affected the processing of the
appellant's prior complaint appeals, the appellant should have raised
her concerns in statements filed in support of those appeals. Mount v.
Department of the Air Force, EEOC Request No. 05930931 (June 2, 1994).
The Commission finds that the agency erred when it accepted allegation
1 as an allegation of employment discrimination. The appropriate
analysis is whether appellant was entitled to official time under 29
C.F.R. s 1614.605(b)(2). Edwards v. United States Postal Service,
EEOC Request No. 05950708 (October 31, 1996). Such a violation may be
remedied without a finding of discrimination. Id., citing Kwok v. United
States Postal Service, EEOC Request No.05940368 (December 15, 1994);
and Jones v. United States Postal Service, EEOC Request No. 05860132
(May 26, 1987).; and Saunders v. United States Postal Service, EEOC
Request No. 05870046 (May 27, 1987) and EEOC Request No. 05860155
(October 8, 1986). Thus, it is not relevant whether the agency's denial
of official time was motivated by discrimination based on race, color,
sex, age or retaliation for the appellant's prior EEO activity. Id.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegation 2; REVERSES the agency's definition of allegation
1; and REMANDS allegation 1 to the agency for processing as ORDERED
below.
ORDER
The agency is ORDERED to conduct an investigation to determine whether
the appellant was denied official time which she should have been granted
pursuant to 29 C.F.R. s 1614.605(b)(2). If so, the agency shall remedy
the wrongful denial by restoring annual leave used by the appellant or by
granting the appellant an appropriate amount of administrative leave.
If the agency determines that the appellant was not wrongly denied
official time, the agency shall issue a final decision explaining the
reason(s) for the denial of official time and the record evidence which
justifies the denial. The agency shall compensate the appellant for
any denial of official time or issue the final decision denying official
time within sixty (60) days of the date this decision becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
10/20/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations