Zoran Milanovic, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01986255 (E.E.O.C. Oct. 14, 1999)

01986255

10-14-1999

Zoran Milanovic, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Zoran Milanovic, )

Appellant, )

)

v. ) Appeal No. 01986255

) Agency No. AL900980736

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

_________________________________)

DECISION

Appellant filed an appeal from an agency decision dated July 20, 1998,

dismissing appellant's complaint for failure to state a claim and on the

grounds of mootness. The agency determined that appellant's complaint

was comprised of the allegation that appellant was discriminated

against when Person A was "hired as a contractor consultant to another

individual who was transferred to the OCEL lab." The agency stated that

appellant alleged that he was "denied an employment opportunity in that

[he believes] an opening did exist for project officer for the OCEL lab."

The agency also stated that appellant's reference to events in 1997 is

background information, and that to the extent that appellant intended

that these events be construed as live allegations, he failed to timely

raise these incidents with an EEO Counselor.

Appellant's complaint is in the form of a three-page narrative in

which he challenged the framing of the issues by the EEO Counselor in

the Notice of Final Interview. The Commission can neither determine

from the complaint nor from appellant's statements on appeal, what

allegations appellant intends to be in his complaint. The Commission

shall remand the complaint to the agency so that appellant can meet

again with an EEO Counselor in order that an agreement can be reached

on the issue(s) in appellant's complaint. See Smith v. United States

Postal Serv., EEOC Request No. 05921017 (Apr. 15, 1993). The Commission

noted in Smith that EEO Management Directive 110, Chap. 2, III (Oct. 22,

1992), provides that at the counseling stage, the EEO Counselor must be

certain that the complainant's issues are clearly defined and that the

complainant agrees on what issues are to be the subject of the inquiry

and subsequent attempts at resolution. Id. Therefore, we shall remand

the complaint for clarification. On remand, the EEO Counselor, after

meeting with appellant, must issue a new report concerning the meeting(s)

and defining the complaint. See id.

The agency's decision dismissing the complaint is VACATED. Appellant's

complaint is REMANDED to the agency for further processing in accordance

with this decision and applicable regulations.

ORDER

The agency is ORDERED to process appellant's complaint in accordance with

29 C.F.R. Part 1614 and instructions in this decision. Specifically,

the agency shall:

1. Schedule in writing a meeting between appellant and an EEO Counselor so

an agreement can be reached on the complaint referred to in this decision.

After the meeting(s), the counselor must issue a new counselor's report

concerning the meeting(s) and defining the complaint. Appellant shall

not be required to refile his complaint.

2. If an agreement cannot be reached on a definition of the issues in

appellant's complaint, then the agency shall issue a decision defining the

complaint. Such a decision must explicitly define all the allegations in

the complaint, i.e., the agency shall not dismiss allegations, de facto,

by failing to define or address allegations.

3. The agency shall notify appellant in writing of all allegations,

if any, it is accepting for investigation. If the agency wishes

to dismiss any allegations, then it must issue a decision doing so.

Such a decision must list all allegations being dismissed and provide

the specific grounds for dismissal.

4. The agency shall complete all the actions in provisions 1 - 3 of this

Order within 60 days of the date this decision becomes final.

5. A copy of the agency's letter to appellant arranging a meeting with

an EEO Counselor, and a copy of the acceptance letter and/or decision

issued pursuant to instructions 2 or 3 of this Order, must be sent to

the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to

File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil

action for enforcement or a civil action on the underlying complaint is

subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

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:

October 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations