01991690_r
11-04-1999
Paul V. Kovarik, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Elementary & Secondary Schools), Agency.
Paul V. Kovarik, )
Appellant, )
)
v. ) Appeal No. 01991690
) Agency No. DE-FY98-08
William S. Cohen, )
Secretary, )
Department of Defense, )
(Elementary & Secondary Schools), )
Agency. )
___________________________________)
DECISION
On December 24, 1998, appellant filed a timely appeal of a final agency
decision, which was dated November 11, 1998, dismissing two allegations
in his complaint, pursuant to 29 C.F.R. �1614.107(a), for failure to
state a claim.<1>
In his March 11, 1998 complaint, appellant alleged that from September
1996, through March 1997: he was not selected for several Transportation
Operations Specialist positions; the agency improperly processed his
application for those positions; and the agency improperly processed his
prior EEO complaints. In its final decision, the agency identified
thirteen allegations. The agency dismissed allegations (12) and
(13), which involved two nonselections to a Transportation Operations
Specialist, GS-11 position under vacancy announcement numbers 97-HQ-025-1
and 97-HQ-026-1, which occurred on March 19, 1997. The agency stated
that since its records showed that no selections were made under those
announcement numbers, the subject allegations failed to state a claim.
The agency accepted allegations (1) through (11) for investigation.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his/her capacity as an employee
or applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .106(a). The Commission's Federal sector case precedent has long
defined an �aggrieved employee� as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Allegations (12) and (13) involved appellant's nonselection to a
Transportation Operations Specialist position under vacancy announcement
numbers 97-HQ-025-1 and 97-HQ-026-1. The record indicates that by letters
dated February 20, 1998, appellant was informed that no vacancies were
filled under those announcement numbers. Since no selections were made
under the announcement numbers at issue, appellant was not treated
differently than any other applicant and we find that the subject
allegations fail to state a claim.
Accordingly, the agency's final decision 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:
November 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency has failed
to fulfill its obligation to transmit its final decision by a method
enabling the agency to show the date of receipt, the Commission presumes
that appellant's appeal was filed within thirty (30) days of receipt of
the agency's final decision. See, 29 C.F.R. �1614.402.