Richard D. Hudak, Complainant,v.Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01985653 (E.E.O.C. Jan. 14, 2000)

01985653

01-14-2000

Richard D. Hudak, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.


Richard D. Hudak v. Federal Deposit Insurance Corporation

01985653

January 14, 2000

Richard D. Hudak, )

Complainant, )

)

v. ) Appeal No. 01985653

) Agency No. 98-29

Donna A. Tanoue, )

Chairman, )

Federal Deposit Insurance Corporation, )

Agency. )

_______________________________________)

DECISION

The Commission finds that the agency's decision dated June 9, 1998,

dismissing a portion of complainant's complaint for failure to state

a claim, and dismissing the remainder of complainant's complaint for

untimely EEO Counselor contact is proper pursuant to the regulations set

forth at 64 Fed. Reg. 37,644, 37656 (to be codified as and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1) and � 1614.107(a)(2)).<1>

The agency defined the complaint as raising the following claims:

The agency breached a Memorandum of Understanding which resolved

complainant's appeal before the Merit Systems Protection Board (MSPB).

The agency denied complainant his rights as a veteran and committed

fraud and other wrong doings (e.g., waste, fraud, and abuse).

The agency denied complainant a within-grade salary increase.

Complainant has not challenged the framing of the complaint. The

Commission agrees with the agency that claims 1 and 2 fail to state

a claim. Any claim that the agency breached an agreement entered into

before the MSPB should be raised with the MSPB. Veterans status is not

protected by laws enforced by the Commission. Similarly, complainant's

generalized claim of waste, fraud, and abuse, is insufficient to show

that complainant is aggrieved.

The agency notes, and complainant does not contest, that complainant

resigned from the agency on August 3, 1990. Complainant did not contact

an EEO Counselor until November 3, 1997. Complainant has not shown

that any denial of a within-grade increase occurred within the 45-day

period that preceded November 3, 1997. Therefore, we find that the

agency properly dismissed claim 3 for untimely EEO Counselor contact.

29 C.F.R. � 1614.107(a)(2). Because of our disposition, we do not

address whether the agency also properly dismissed claim 3 on other

grounds.

To the extent that complainant is attempting to raise other claims of

discrimination in the complaint, the Commission finds that complainant

has failed to show he was aggrieved by such incidents and/or that such

incidents were timely raised with an EEO Counselor.

The agency's decision dismissing the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

Jan. 14, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.