01A31060_r
12-04-2003
Kenneth L. Kovacs, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.
Kenneth L. Kovacs v. Department of the Army
01A31060
December 4, 2003
.
Kenneth L. Kovacs,
Complainant,
v.
R. L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A31060
Agency No. ARCENY02OCT0005
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 8, 2002, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The agency defined complainant's complaint as alleging
that he was subjected to discrimination on the bases of disability and
reprisal for prior EEO activity when:
Two employees in Resources Management (Person A and Person B) were less
than diligent in rectifying a problem with complainant's federal, local
and state taxes.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency concluded that complainant failed to show that he suffered
any harm with regard to the terms or conditions of his employment.
Additionally, the agency stated that the alleged circumstance does not
rise to the level of creating a hostile or harassing work environment.
On appeal, complainant states that during pre-complaint counseling
he discussed a number of factual issues supporting his claim of a
continuing harassment and discrimination. Complainant states that the
incidents supporting his discrimination claim had been conveyed to the
EEO Counselor orally and through a series of electronic mail messages.
Complainant states that the issues he raised with the EEO Counselor
include payroll matters, tax matters, leave matters and other personnel
matters. Complainant claims that the agency failed to address his
assertions of a �continuing course of agency conduct demonstrating
deliberate and intentionally uncooperative behavior and inaction
concerning personnel matters.�
In response to complainant's appeal, the agency reiterates its position
that complainant's complaint was properly dismissed for failure to state
a claim. The agency states that complainant's complaint involves two
allegations: (a) co-workers complained about his insulting remarks,
and (b) his supervisor scheduled a meeting with these co-workers and
complainant. The agency asserts that neither of these two issues,
even when taken together, show that complainant has been aggrieved.
Additionally, the agency argues that complainant has failed to state
a claim of harassment. The agency notes that complainant claims that
he raised a number of incidents of harassment with the EEO Counselor;
however, the agency states that complainant failed to identify any
specific agency action for the agency to address. The agency states that
the other acts of harassment noted by complainant on appeal (payroll
matters, tax matters, leave matters and other personnel matters) all
pertain to the delay of the agency in effecting the desired change
to complainant's TSP contribution. The agency claims that these acts
concluded with the finalization of his amended contribution in February
2002 or (at the very latest) the refund of his $55.00 on June 15, 2002.
The agency claims that these acts are insufficient to rise to the level
of actionable harassment under the law.
Alternatively, the agency argues that complainant's complaint should
be dismissed on the grounds that complainant failed to timely contact
an EEO Counselor. The agency notes that complainant requested his TSP
contribution be increased on December 21, 2001, and was notified that
the increase took effect in February 2002. The agency stated that the
$55.00 that had been deducted from his pay on the account of the delay
in increasing his contribution was refunded to him on June 15, 2002.
The agency notes, however, that complainant did not contact the EEO
Office until September 30, 2002. The agency notes that complainant did
not initially contact an EEO Counselor, but rather opted to complain
to a number of agency officials, even while insisting that anyone else
would not have been treated in the same manner.
With regard to his harassment claim, the agency states that complainant
has alleged only minor acts. The agency claims that the actions alleged
(a one month delay in the TSP change and the withholding of $55.00,
both of which were corrected, and a �punch� from a lower-ranking woman)
are inconsequential incidents that do not rise to the level of an
actionable claim.
In his complaint dated October 29, 2002, complainant identified the
alleged discriminatory incident as: On September 9, 2002, complainant was
notified by his supervisor that charges were raised by Person A and Person
B and complainant was to be brought before an adjudicating forum/meeting
without representation and without knowing the specific charges. Upon
review, we find that the only claim complainant raised in his complaint
concerned the September 9, 2002 incident. The Commission finds that
complainant has not shown how he was aggrieved by the September 9, 2002
incident. Therefore, we find that the complaint was properly dismissed
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2003
__________________
Date