0120101024
06-02-2010
Anthony Cascio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Anthony Cascio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101024
Agency No. 1H333003409
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 27, 2009, dismissing his complaint
of unlawful employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In his complaint,
complainant alleged that he was subjected to discrimination on the basis
of disability (unspecified) when:
1. Complainant was not assigned a residual bid as a preference eligible
employee after complainant became an unassigned regular in November 2008.
The agency dismissed the complaint for failure to state a claim and for
untimely EEO Counselor contact. The agency found that the claim raised
an allegation of noncompliance with the Collective Bargaining Agreement
which allowed for challenges under a grievance procedure and therefore
the claim constituted a collateral attack on the grievance process.
The agency further found that complainant became an unassigned regular
in November 2008 but he did not initiate contact with an EEO Counselor
until September 25, 2009.
Complainant maintains that it was not until September 4, 2009 that he
saw a notice in the APWU window explaining an aspect of the National
Agreement that he realized that management had violated his rights
under the agreement by not assigning him a residual bid since he became
an unassigned regular in 2008. He maintains that his September 25,
2009 Counselor contact was therefore timely. Complainant, however, has
not explained what caused him to realize on September 4, 2009 that the
agency's action constituted discrimination based on disability. Indeed,
on appeal, complainant states "management only awards residual bids
to senior unassigned clerks and not to preference eligible unassigned
clerks." Such an allegation does not state a claim of discrimination
based on disability. Nor has complainant identified a specific act of
agency discrimination against him within 45 days of his Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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, Director
Office of Federal Operations
June 2, 2010
__________________
Date
2
0120101024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101024