01980404
01-29-1999
Stephen M. Oppermann, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Stephen M. Oppermann v. Department of the Interior
01980404
January 29, 1999
Stephen M. Oppermann, )
Appellant, )
)
v. ) Appeal No. 01980404
) Agency Nos. FNP-94-078
Bruce Babbitt, ) FNP-94-143
Secretary, )
Department of the Interior, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated August
26, 1997 dismissing a portion of appellant's complaint for untimely EEO
Counselor contact and for failing to state a claim. Although appellant
had requested a hearing on the complaint, the Commission finds that
there is no indication that any hearing had yet commenced on the instant
complaint when the August 26, 1997 decision was issued. The Commission
finds that the agency did not waive its right to dismiss a portion of
the complaint for untimely EEO Counselor contact or for failure to state
a claim.
The Commission finds that allegations 16 (organization chart omitted
appellant's position) and 17 (proposal to upgrade position of Chief,
Information Management Division) were properly dismissed for failing
to state a claim pursuant to 29 C.F.R. �1614.107(a). Appellant failed
to show how he was aggrieved in allegations 16 and 17. Allegation 17
is not an allegation that appellant's position was not upgraded.
Allegation 17 is an allegation that the agency was willing, in the
form of a proposal, to upgrade another person's position. Thus,
allegation 17 is simply evidence purporting to show that appellant was
discriminatorily not upgraded. The failure to upgrade appellant is the
issue in allegation 1. Even if appellant is alleging in allegation
17 that he was discriminatorily not upgraded, then allegation 17 is
properly dismissed pursuant to �1614.107(a) for stating the same claim
as allegation 1.
The Commission finds that allegations 1 (failure to upgrade), 7
(another person served as Secretary to the Board), 8 (another person
was detailed), 11 (appellant's nonselection), and 15 (appraisals) were
properly dismissed for untimely contact of an EEO Counselor pursuant
to �1614.107(b). Allegations 1, 7, 8, 11, and 15 are not timely under
the continuing violation theory, because we find that appellant should
have reasonably suspected discrimination concerning these incidents more
than 45 days before he contacted an EEO Counselor.
The agency's decision dismissing allegations 1, 7, 8, 11, 15, 16, and
17 is 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. �l6l4.604(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:
January 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations