01A33466_r
09-29-2003
Michael J. Stramoski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael J. Stramoski v. United States Postal Service
01A33466
September 29, 2003
.
Michael J. Stramoski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33466
Agency No. 4G-780-0312-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 6, 2003, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
On August 6, 2002, complainant initiated EEO contact. Informal efforts
to resolve his concerns were unsuccessful.
Complainant filed a formal complaint on March 6, 2003, alleging that
he was subjected to discrimination on the bases of race, sex, and age
when on April 16, 2002, he became aware that management had written
unfavorable and false information on his PS Form 1769, Accident Report,
dated April 17, 2002, following an injury that complainant sustained on
April 16, 2002.
The agency dismissed the complaint for untimely EEO Counselor contact.
Specifically, the agency determined that the alleged discriminatory event
occurred on April 17, 2002, but that complainant did not contact an EEO
Counselor until August 6, 2002, which was beyond the forty-five (45) day
limitation period. The agency submitted an agency official's affidavit
confirming that EEO posters containing the requisite time limit were
on display at the Downtown Station in Waco, Texas, where complainant
worked during the time of the alleged discriminatory event. Further,
the agency determined given complainant's prior EEO activity, he was
familiar with the forty-five (45) limitation period.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The record discloses that the alleged discriminatory event occurred on
April 17, 2002, but that complainant did not initiate contact with an
EEO Counselor until August 6, 2002, which is beyond the forty-five (45)
day limitation period. On appeal, complainant first asserts that in late
April 2002, he spoke with a named agency official in the EEO Complaint
Processing Office at the agency's General Mail Facility in San Antonio,
Texas, and informed her that he was unable to come in to initiate the EEO
process because he was on medication for pain and therefore was ordered
not to drive. Complainant further asserts that he requested the required
EEO paperwork be sent to his home address but that the agency official
informed him that he had to come in to fill out the EEO forms. Further,
complainant asserts that on July 25, 2002, he was taken off medication
and returned to work; thereby rendering timely his initial EEO contact
on August 6, 2002. The Commission is not persuaded by complainant's
contentions on appeal. Complainant had offered no evidence in support
of his assertions on appeal that he had been misled by an agency EEO
official, thereby causing his delay in contacting an EEO Counselor.
In summary the Commission finds that complainant has failed to present
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED for the
reasons set forth herein.
Because we affirm the agency's dismissal of the instant complaint for
the reason stated herein, we find it unnecessary to address the agency's
alternative dismissal grounds of failure to state a claim.
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
September 29, 2003
__________________
Date