Michael A. Gulotta, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 23, 2001
01A04501 (E.E.O.C. Feb. 23, 2001)

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When the career position offer in Gainesville was withdrawn by the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.