01982181_r
06-02-1999
Paul V. Kovarik, Appellant, v. William S. Cohen, Secretary, Army & Air Force Exchange Service, Agency.
Paul V. Kovarik, )
Appellant, )
)
v. ) Appeal No. 01982181
) Agency No. 97.121
William S. Cohen, )
Secretary, )
Army & Air Force Exchange )
Service, )
Agency. )
)
DECISION
Upon review, the Commission finds that allegations 1-2 and 4
of appellant's complaint were properly dismissed pursuant to 29
C.F.R. �1614.107(a) for failure to state a claim. We further find that
allegation 3 was 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.
In his complaint, appellant alleged that he was not satisfied with
the EEO counseling that he received in a prior complaint; that the
EEO Specialist was biased when she gave a statement in the agency's
request for reconsideration in one of his previous EEO complaints;
that his counseling cards were included in the agency's request for
reconsideration although they should not have been in his files for
more than six months; and before his file was closed because he was on
active duty, he was supposed to engage in a fact finding process in a
prior complaint, but never had the chance to do so.
Allegation 1 involves the processing of one of appellant's prior
complaints. Allegation 2 involves improper participation by the
EEO Specialist in the agency's request for reconsideration of one of
appellant's prior complaints. Allegation 4 concerns the AJ improperly
stopping the EEO fact finding process until appellant completed his tour.
Clearly, appellant is challenging the processing of his prior EEO
complaints. The Commission has held that an allegation which relates
to the processing of a previously filed complaint does not state an
independent allegation of employment discrimination. See Kleinman v.
U.S. Postal Service, EEOC Appeal No. 05940579 (September 22, 1994);
Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March 13, 1997).
If a complainant is dissatisfied with the processing of his pending
complaint, he should be referred to the agency official responsible for
the quality of complaints processing. Agency officials should earnestly
attempt to resolve dissatisfaction with the complaints process as early
and expeditiously as possible. See EEO MD 110 (4-8). Furthermore,
given the nature of appellant's allegations of improper processing,
we find that the proper method for addressing such matters would be
within the continued processing of the previously filed complaint or
on appeal from the final agency decision issued therein. Any remedial
relief to which appellant would be entitled would necessarily involve
the processing of the underlying complaint. Consequently, allegations 1,
2, and 4 were properly dismissed for failure to state a claim, pursuant
to 29 C.F.R. �1614.107(a).
Finally, we note with regard to allegation 3 that appellant acknowledged
that he did not contact an EEO Counselor within the 45-day limitation
period because he wanted to raise the issue with the Administrative Judge.
The record indicates that appellant was aware when he was terminated
on April 24, 1995, that the counseling cards at issue were still in his
files. Appellant did not initiate contact with an EEO Counselor until
April 16, 1997, after the expiration of the 45-day limitation period.
We find that appellant has not provided adequate justification for his
delay in contacting an EEO Counselor. Accordingly, the final agency
decision dismissing appellant's complaint is hereby AFFIRMED for the
reasons set forth herein.
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:
June 2, 1999 __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations