01A22487_r
03-17-2003
Joseph P. Ponisciak, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Joseph P. Ponisciak v. Social Security Administration
01A22487
March 17, 2003
.
Joseph P. Ponisciak,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A22487
Agency No. 01-0109-SSA
Hearing No. 170-A2-8014X
DECISION
Complainant initiated contact with the agency's EEO Office on November
2, 2000. On December 6, 2000, complainant filed a formal EEO complaint
wherein he claimed that he was discriminated against in reprisal for
his previous EEO activity under Title VII when on August 2, 2000, he
was not selected for the position of Claims Authorizer, GS-11.
The agency accepted the complaint for investigation. Subsequent to
completion of the investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). By decision dated February 15, 2002, the
AJ granted the agency's motion to dismiss the complaint. The AJ adopted
the agency's statement of the facts and its analysis as set forth in its
motion and found that complainant failed to initiate contact with an EEO
Counselor in a timely manner. Complainant filed the instant appeal on
April 2, 2002. By final order dated April 8, 2002, the agency dismissed
the complaint on the grounds that complainant failed to initiate contact
with an EEO Counselor in a timely manner.
The agency stated in its motion to dismiss that on August 4, 2000,
complainant in his capacity as a union official submitted a request for an
audit of the promotion package for the relevant position. It is evident
that complainant was aware of his nonselection no later than August 4,
2000. Nevertheless, complainant did not initiate contact with an EEO
Counselor until November 2, 2000, after the expiration of the 45-day
limitation period for contacting an EEO Counselor. Complainant claims
that he did not believe that he had been discriminated against until
November 1, 2000, the day he learned of the results of the union audit.
The record indicates that an audit only addresses the matter of which
individuals were on the well-qualified list and it does not extend
to the actual selection process. Complainant was included on the
well-qualified list. We are not persuaded that complainant lacked a
reasonable suspicion of discrimination at the time of his nonselection
and only developed such a suspicion when he learned of the audit results.
We find that complainant's contact of an EEO Counselor on November 2,
2000, was more than 45 days after his nonselection, and therefore his
EEO contact was untimely. Accordingly, the agency's decision dismissing
complainant's complaint was proper pursuant to 29 C.F.R. � 1614.107(a)(2)
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 17, 2003
__________________
Date