01982212
02-12-1999
Leonard P. Machulas, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Leonard P. Machulas v. Department of the Air Force
01982212
February 12, 1999
Leonard P. Machulas, )
Appellant, )
)
v. ) Appeal No. 01982212
) Agency No. AL900980287
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated January 15, 1998
dismissing appellant's complaint for failing to state a claim is proper
pursuant to 29 C.F.R. �1614.107(a).
The agency defined the complaint as alleging that appellant was
discriminated against on the basis of reprisal when on November 15,
1995 the Chief EEO Counselor would not let appellant file three formal
EEO complaints (regarding appellant's nonselection in April 1992,
a performance improvement plan on May 7, 1993, and two administrative
grievances filed in December 1993). Appellant has not challenged the
framing of the instant complaint. Although appellant need not prove that
the alleged incidents in the complaint<1> actually occurred in order to
state a claim, appellant must make some minimal showing, when practical
and possible, that the alleged incidents occurred.
In the instant matter appellant has not provided any documentation to
show that on November 15, 1995 the Chief EEO Counselor would not allow
appellant to file three complaints. There is no letter, memorandum,
or document from the Chief EEO Counselor dated November 15, 1995.
Appellant has not provided copies of complaints that he attempted
to file on November 15, 1995 which were returned to him or which he
filed prior to November 15, 1995 which were returned to him on November
15, 1995. Appellant has not produced any evidence, apart from his own
non-detailed assertion, to show that the Chief EEO Counselor took any
action on November 15, 1995. Therefore, we find that appellant, in the
instant matter, has failed to show that he is aggrieved. The agency's
decision dismissing the complaint is AFFIRMED.
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. �l6l4.604(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 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. 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:
February 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Proving that the underlying incidents occurred is different from showing
that such incidents were motivated by discrimination.