01981575
01-14-1999
Warren E. Funston, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Warren E. Funston v. Department of the Navy
01981575
January 14, 1999
Warren E. Funston, )
Appellant, )
)
)
v. ) Appeal No. 01981575
) Agency No. 98-44466-002
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Upon review, the Commission finds that the agency properly dismissed
allegation (a) in appellant's complaint for failure to state a claim
pursuant to 29 C.F.R. �1614.107(a). In allegation (a), appellant
indicated that he was discouraged from applying for jobs when he received
negative and false comments from two agency employees. The record
indicates that the incidents involved alleged discriminatory comments
which were not accompanied by any concrete and/or personnel action against
appellant. The agency indicated that appellant was eligible to apply for
positions under the merit promotion process. The Commission has held that
a remark or comment, unaccompanied by concrete action, is not a direct
and personal deprivation sufficient to render an individual aggrieved.
See Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995).
Upon review, the Commission finds that the agency properly dismissed
allegations (b), (c), and (d) in appellant's complaint, pursuant to
29 C.F.R. �1614.107(b), due to untimely EEO Counselor contact. In the
subject allegations, appellant indicated that he was denied half of the
cost of living allowance increase of his previous grade, WG-10, step 5;
he was not considered fairly for other jobs; and he was not regarded
as having a permanent disability. The record, undisputed by appellant,
indicates that the alleged incidents occurred sometime between 1994 and
early 1996, and appellant did not contact an EEO Counselor until July
26, 1997, which was beyond the 45-day time limit set by the regulations.
On appeal, appellant has presented no persuasive arguments or evidence
to show that he contacted an EEO Counselor with regard to the subject
allegations in a timely manner pursuant to 29 C.F.R. �1614.105(a)(1).
Based on the foregoing, 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:
January 14, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations