01985994
08-19-1999
Mark J. Kirk, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Mark J. Kirk v. Department of the Treasury
01985994
August 19, 1999
Mark J. Kirk, )
Appellant, )
)
v. ) Appeal No. 01985994
) Agency No. 98-2176
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Upon review, we find that allegation 1 of appellant's complaint was
properly dismissed pursuant to 29 C.F.R. �1614.107(a) on the grounds of
failure to state a claim and allegations 2-4 of appellant's complaint were
properly dismissed pursuant to 29 C.F.R. �1614.107(b), on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
Allegation (1) involves appellant feeling slighted and insulted because
his supervisor told him to come back later when he tried to enter the
supervisor's office at 7:45 a.m. while carrying official documents.
Appellant stated that the supervisor was inside the office with two other
African-American females drinking coffee. We find that appellant did not
establish that he was harmed by this incident with regard to a term,
condition, or privilege of his employment. Therefore, this allegation
fails to state a claim.
The other allegations that were dismissed were that (2) opportunities to
represent the agency were given to African-American inspectors first;
(3) work distribution was biased toward African-American Inspectors as
heavier workloads were given to non-African-American Inspectors and some
African-American Inspectors were not required to work; and (4) a superior
achievement award was given to an African-American Inspector who did not
do inspections. Appellant stated that these matters occurred recently,
but despite a request that he clarify the dates of the respective
incidents, appellant failed to provide such information. The record
indicates that the achievement award at issue was presented in 1997.
We find that appellant failed to establish that the events set forth in
allegations 2-4 occurred 45 or fewer days before he initiated contact
with an EEO Counselor on March 2, 1998. Further, the formal complaint
indicates that appellant became aware on October 10, 1997, that he was
being discriminated against, several months before he contacted an EEO
Counselor. Appellant has not provided adequate justification for his
delay in contacting an EEO Counselor. Accordingly, the final agency
decision dismissing allegation 1 on the grounds of failure to state a
claim and allegations 2-4 on the grounds of untimely EEO contact is
hereby 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. �1614.604(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:
August 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations