05990420
06-11-1999
Neal A. Fasano, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Neal A. Fasano v. United States Postal Service
05990420
June 11, 1999
Neal A. Fasano, )
Appellant, )
) Request No. 05990420
v. ) Appeal No. 01982834
) Agency No. 1-J-620-0002-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On March 3, 1999, Neal A. Fasano (appellant) initiated a request to
the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Fasano v. USPS, EEOC Appeal No. 01982834 (February
17, 1998). EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision
is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3). Appellant's request is denied.
The record indicates that appellant was removed from his position
for misconduct in September 1996. Appellant filed a grievance on the
matter, and an arbitrator issued a decision in November 1997 denying the
grievance. Thereafter, on December 1, 1997, appellant contacted an EEO
counselor alleging discrimination based on race (White) and reprisal with
regard to his removal. The agency dismissed the complaint for failure
to timely contact the EEO counselor. Appellant appealed the dismissal,
and the previous decision affirmed without substantive comment.
In his request for reconsideration, appellant states that his
representative did not inform him of the time limits for contacting
the EEO counselor and was very slow in helping him. Appellant also
provided a lengthy chronology of his employment with the agency as well
as arguments going to the merits of his case.
The Commission finds that appellant's contact with the counselor
was untimely pursuant to 29 C.F.R. �1614.105(a)(1) and appellant
has failed to provide justification for waiving the time limits. The
agency indicated that posters were on display at the facility where
appellant worked. To the extent that appellant may be arguing that
he had to complete the grievance process before filing his complaint,
the Commission has repeatedly held that the initiation of other appeal
processes does not toll the time limit for seeking EEO counseling. See,
e.g., Mathews v. USPS, EEOC Request No. 05930887 (January 21, 1994). Thus,
the Commission finds that appellant's efforts to first resolve the matter
through the use of a grievance system does not justify tolling the time
limits.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's request
does not meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to deny appellant's request. The decision
of the Commission in Appeal No. 01982834 remains the Commission's final
decision. There is no further right of administrative appeal from the
decision of the Commission on this request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
June 11, 1999
____________ ___________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat