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

Equal Employment Opportunity CommissionOct 20, 1999
01990117 (E.E.O.C. Oct. 20, 1999)

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