01a02265
05-16-2000
Francis L. Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Francis L. Brown, )
Complainant, )
)
v. ) Appeal No. 01A02265
) Agency No. 1-J-601-0069-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision, dated December 15, 1999, dismissing her complaint of unlawful
employment discrimination.<1> The agency dismissed the complaint for
failure to file a timely formal complaint. On appeal, complainant argues
that the agency agreed to the delay in her filing �due to an emergency�
involving hospitalization.
The record reveals that complainant received her Notice-of-Right-to-File
on October 25, 1999, and she hand-delivered her formal complaint to
the agency November 15, 1999. The record also contains a letter dated
November 11, 1999, requesting an extension to file the formal complaint
because complainant was hospitalized for seizures and pneumonia.
Complainant must file her formal complaint within fifteen (15) days
of receiving notice of the right to do so. See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified as 29 C.F.R. � 1614.106). The agency
may dismiss complaints that fail to comply with this time limit.
See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(2)).
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted where an individual is so
incapacitated by her condition that she is unable to meet the regulatory
time limits. See Davis v. United States Postal Service, EEOC Request
No. 05980475 (August 6, 1998); Crear v. United States Postal Service,
EEOC Request No. 05920700 (October 29, 1992).
In the present case, we find that a determination of the timeliness of the
formal complaint is not necessary because nonetheless, her claim fails to
state a claim. In the formal complaint, and in counseling, complainant
alleges discrimination on the basis of �disparity of treatment,� but
does not allege a specific protected basis.
Complaints that fail to state a claim must be dismissed. See 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)). An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
In the present case, complainant has not alleged that she was
discriminated against because of race, color, religion, sex, national
origin, age, or disabling condition. She simply states that she suffered
�disparity in treatment.� Therefore, her complaint fails to state a
claim, and must be dismissed.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED for the reasons set
forth herein.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 16, 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 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.