Alan Lipari, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity CommissionOct 27, 1999
01987022 (E.E.O.C. Oct. 27, 1999)

01987022

10-27-1999

Alan Lipari, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.


Alan Lipari v. Department of Defense

01987022

October 27, 1999

Alan Lipari, )

Appellant, )

)

v. ) Appeal No. 01987022

) Agency No. N98-04

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Contract Audit Agency), )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated August 24, 1998, which the agency issued pursuant to

EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts

the appellant's appeal in accordance with EEOC Order No. 960, as amended.

The final agency decision addressed seven retaliation allegations

raised by the appellant's July 9, 1998 complaint. The decision accepted

allegation 2 for investigation. The decision dismissed allegations 1, 3,

4, 6, and 7 for failure to state a claim; allegations 5 and 7 for stating

the same claim raised and accepted for processing in a prior complaint;

and allegations 6 and 7 for untimely EEO counselor contact.

After a review of the record, including the appeal submissions

of the parties, the Commission finds that the agency properly

dismissed allegations 1, 3, 4, 5, 6, and 7. The Commission finds that

allegations 1, 3, 4, and 6 fail to state a claim of unlawful employment

discrimination, that is, discrimination regarding the terms, conditions

or privileges of the appellant's employment. Allegations 1 and 6 concern

the processing of the appellant's informal EEO complaint; allegation 3

concerns the processing of the appellant's Freedom of Information Act

request; allegation 4 alleges that the agency did not comply with the

terms of the Collective Bargaining Agreement regarding the maintenance

of grievance records. The record demonstrates that allegations 5 and

7 concern factual allegations related to an Environmental Investigation

matter which the agency accepted for investigation in a prior complaint

(agency complaint number N97-10). Finally, factual allegations 6 and

7 were not timely raised with an EEO counselor as separate claims of

discrimination.

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of allegations 1, 3, 4, 5, 6, and 7 from the appellant's July 9,

1998 complaint.

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:

10/27/1999

______________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations