01A02639
03-29-2001
Rosanna M. Zdunich, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rosanna M. Zdunich v. United States Postal Service
01A02639
March 29, 2001
.
Rosanna M. Zdunich,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02639
Agency No. 4-F-920-0345-99
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (2), for raising
the same claim that has already been addressed by the agency and for
untimely EEO Counselor contact. Complainant claimed that she had been
discriminated against on the basis of disability when:
(1) on October 28, 1992, her bid was restructured to include heavy
lifting;
(2) on December 28, 1992, she was denied the right to return to duty
and subjected to constructive discharge;<1> and
(3) in July 1994, September 1997, and May 1999, management continuously
attempted to force complainant into a position not within her medical
restrictions.
The agency issued a final decision dismissing claims (1) and (2)
on the grounds that these issues were investigated in Agency Case
Nos. 4-F-1241-93 and 4-F-1339-93. The agency further found that both
cases were closed by final agency decision as these matters were the
basis of a pending civil suit. Claim (3) was dismissed for untimely EEO
Counselor contact and failure to state a claim. The agency found that
although the most recent act of discrimination had allegedly occurred
in May 1999, complainant did not seek EEO counseling until August 8,
1999, beyond the 45-day time limit provided by EEOC Regulations.
A review of the record persuades the Commission that claims (1) and
(2) were properly dismissed. The record shows that in Agency Case
No. 4-F-1339-93, complainant raised the same matters raised in claims (1)
and (2) of the instant complaint. The record further shows that Agency
Case No. 4-F-1339-93 was dismissed by the agency on the grounds that
complainant filed a civil action in a United States District Court.
Accordingly, the dismissal of claims (1) and (2) was proper and is
AFFIRMED.
The record discloses that although claim (3) raises a discriminatory
event allegedly occurred in July, 1994, September 1997, and May 1999,
complainant did not initiate contact with an EEO Counselor until August
8, 1999, which is beyond the forty-five (45) day limitation period.
On appeal, no persuasive arguments or evidence have been presented
to warrant an extension of the time limit for initiating EEO contact.
Accordingly, the agency's decision to dismiss claim (3) was proper and
is AFFIRMED for the reasons set forth herein.
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
March 29, 2001
__________________
Date
1 While the matter addressed in claim (2) addresses activities in 1992,
that ultimately led to complainant's separation, on appeal, complainant
states that she involuntarily retired from agency employment some years
later, in February 1998.