01A04501
02-23-2001
Michael A. Gulotta, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael A. Gulotta v. United States Postal Service
01A04501
February 23, 2001
.
Michael A. Gulotta,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04501
Agency No. 4-H-327-0113-00
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
counselor contact.<1>
The record shows that by letter dated November 15, 1999, complainant
was informed by the agency that his name had been removed from the
active register of eligibles for casuals because he was found to be
medically unsuitable. Complainant was advised of his right to request
reconsideration. By letter dated December 7, 1999, the agency found
that the reconsideration was not favorable to complainant and informed
him his name had been removed from the files.
Complainant stated that he was hired for a career position by the
Gainesville Post Office in January 2000, and that by letter dated January
26, 2000, the agency advised complainant that �Gainesville sent you a
letter to report for duty in error�. Complainant was also informed
that the medical information he had provided appeared to indicate
falsification.
Complainant sought EEO counseling on February 15, 2000, claiming that
he had been discriminated against on the basis of disability when by
letter dated December 7, 1999, his name was removed from the files
for casual employment in the Central Florida District because he was
medically unsuitable for the position. By letter dated February 29,
2000, complainant stated that the reason he did not seek EEO counseling
earlier was because he had been offered a career position in Gainesville.
When the career position offer in Gainesville was withdrawn by the
agency, complainant decided to seek EEO counseling concerning the removal
of his name from the files of casual employees.
Complainant subsequently filed a formal complaint claiming that he had
been discriminated against on the basis of physical disability when:
(1) his name was taken off the casual position list in December 1999; and
(2) he was accused of falsifying his medical records and denied a career
position already offered in Gainesville.
The agency dismissed claim 1 on the grounds of untimely EEO Counselor
contact. The agency found that although the incident in question
occurred on December 7, 1999, complainant did not seek EEO counseling
until February 15, 2000. Concerning claim 2, the agency determined that
it was accepted for investigation under Agency Case No. 4-H-320-0016-00.
On appeal, complainant states that regarding claim 1, he did not contact
an EEO Counselor until February 15, 2000, because he had been offered
a more lucrative full time position �thereby negating the need to appeal
the casual temporary employment at the Mid-Florida facility on December
7, 1999". Regarding claim 2, complainant acknowledges that the matter
raised therein is being addressed in another EEO complaint, that he
identified as Agency Case No. 4-H-320-0016-00.
Regarding claim 1, we find that complainant's initial EEO Counselor
contact on February 15, 2000, was untimely. Complainant has provided no
justifiable reason for his delay in contacting an EEO Counselor regarding
this matter. Regarding claim 2, the Commission determines that this
matter was raised in a prior complaint, as acknowledged by complainant on
appeal. The agency therefore properly dismissed claim 2. Accordingly,
the agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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, Director
Office of Federal Operations
February 23, 2001
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.