Francis L. Brown, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01a02265 (E.E.O.C. May. 16, 2000)

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.