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.