Victor Karcichv.Department of Justice 01995782 07-27-00 . Victor Karcich, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01995782 (E.E.O.C. Jul. 27, 2000)

01995782

07-27-2000

Victor Karcich v. Department of Justice 01995782 07-27-00 . Victor Karcich, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Victor Karcich v. Department of Justice

01995782

07-27-00

.

Victor Karcich,

Complainant,

v.

Janet Reno,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01995782

Agency No. I98W027

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from the

agency's final decision dated June 7, 1999, dismissing his complaint

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq.<1>

The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,

644, 37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUES PRESENTED

The issues on appeal are whether the agency properly dismissed

complainant's claim for failing to timely file a formal complaint and

for raising a matter that was not brought to the attention of the EEO

Counselor.

BACKGROUND

Complainant filed a formal complaint on March 10, 1998, alleging denial

of a promotion in violation of Title VII. In his complaint, complainant

alleged that he was subjected to discrimination and a hostile work

environment on the bases of race (white) and reprisal (prior EEO activity)

when: management denied him career advancement by not promoting him to the

position of Senior Patrol Agent, GS-11. In the agency's final decision,

the agency dismissed complainant's claim pursuant to EEOC Regulation 29

C.F.R. � 1614.107(a)(2) for failing to file a formal complaint within

fifteen (15) days of the date of receipt of the notice of right to file

a complaint and for raising a matter not like or related to a matter

brought to the attention of the EEO Counselor.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a

written complaint with an appropriate agency official within fifteen

(15) calendar days after the date of receipt of the notice of the right

to file a formal complaint.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall

dismiss a complaint that fails to comply with the applicable time limits

contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency

extends the time limits in accordance with � 1614.604(c).

The record in this case indicates that complainant received a notice

of the right to file a formal discrimination complaint on September

13, 1997. The notice informed complainant that he had fifteen days from

the date of receipt of the notice in which to file a formal complaint or

the option to continue the counseling process for an additional sixty

(60) days. After opting to continue EEO counseling, complainant was

notified of his right to file a formal complaint on October 13, 1997,

in his notice of final interview. The record further reflects that

complainant did not file a formal complaint within fifteen days of his

receipt of this notice but, instead filed the formal complaint almost

five months later on March 10, 1998. Moreover, complainant has failed

to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c),

for extending the filing period.

Furthermore, in his complaint, complainant alleges denial of a promotion

to GS-11 Senior Patrol Agent position. The matter addressed during his

EEO counseling, however, concerned the agency's handling of his pending

EEO complaints. Complainant evidences no relation between the issues

raised in his complaint and to those discussed with the EEO Counselor,

and the two issues appear distinct and separate. Thus, we find that the

agency properly dismissed complainant's claim for failure to timely file

a formal complaint and for raising a matter not previously addressed

with the EEO Counselor and not like or related to the matter raised.

CONCLUSION

Accordingly, the agency's final decision dismissing appellant's complaint

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

__07-27-00________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

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.