01992121
04-04-2000
Dennis A. Sherman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis A. Sherman, )
Complainant, )
)
v. ) Appeal No. 01992121
) Agency No. 4-B-028-0098-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 8, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
November 16, 1998, pertaining to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted for review pursuant to 64 Fed. Reg. 37,644, 37,
659 (1999) (to be codified at 29 C.F.R. � 1614.405).
BACKGROUND
On June 9, 1998, complainant received a letter informing him that he was
not selected for the Associate Supervisor's Program (ASP). By letter
dated July 19, 1998, complainant asked that the agency reconsider their
decision, and interview him for the ASP. The agency responded with
a letter dated July 23, 1998. Therein, complainant was informed that
the selection board's decision was final. The letter also stated that
complainant could re-apply for the ASP the next time it was advertised.
On August 19, 1998, complainant sought EEO counseling. Complainant
informed the EEO Counselor that he received the June 9, 1998 letter,
and opined that his non-selection was due to management's failure to
allow him to serve as an Acting Supervisor (204-B).
On October 12, 1998, complainant filed a formal complaint of
discrimination on the bases of sex (male) and age alleging that a younger
female employee was allowed to serve as a 204-B before complainant,
even though complainant requested 204-B duty nine months earlier.
Complainant also contended that the female employee was given 204-B
status on a daily basis while complainant only served as a 204-B for
seven days in a four-week period. For relief, complainant requested that
he be allowed to serve as a 204-B until being made a Level-15 Associate
Supervisor.
In its FAD, dated November 12, 1998, the agency defined the complaint
as alleging that complainant has not been allowed to serve as a 204-B,
most recently in April 1998. The agency dismissed the complaint as
defined for untimely counselor contact. Specifically, the agency noted
that complainant sought counseling more than forty-five days after the
last day he was utilized as a 204-B.
On appeal, complainant argues that he was first aware that he would
receive no more training when he received the July 23, 1998 letter.
Complainant states that he was not informed that his 204-B training
had ended prior to that date, and believed that placement in the 204-B
position should have lasted four months.
In response, the agency admits that it erred when defining the issues
from complainant's formal complaint. The agency contends that the claims
should have been defined as follows: �a younger female employee was
assigned 204-B training nine months prior to complainant and was trained
on a daily basis while complainant was allowed only seven days of training
during a four-week period ending April 1998.� The agency asserted that,
even as redefined, the claim was not timely raised with a counselor.
Further, the agency contends that the date of the alleged discriminatory
event should govern timeliness, not the date that its consequences became
most painful to complainant. Concerning complainant not being selected
for the ASP program, the agency argued that complainant never raised
the matter in his formal complaint, and therefore need not address it
in his FAD.
ANALYSIS AND FINDINGS
The Commission finds that the agency properly defined complainant's
claim concerning 204-B training on appeal; however, the agency erred
by failing to address the ASP non-selection claim. Upon review of
complainant's complaint, while not listed as an issue, complainant did
request an Associate Supervisor position as remedial relief. Further,
complainant did address the issue of his nonselection for the ASP
with the EEO Counselor. We note that in defining the issues raised in
a complaint, the agency should review not only the formal complaint,
but also the EEO Counselor's Report. In the present case, we find that
complainant clearly raised the issue of his nonselection for the ASP.
Accordingly, we find that this issue must be REMANDED to the agency for
inclusion in the further processing of complainant's complaint.
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 Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission is unable to determine whether complainant timely contacted
an EEO Counselor regarding management's failure to allow him 204-B status.
Complainant is alleging that a younger female received more 204-B training
than he did, but the record contains no information of when the female
employee requested 204-B status, when she received such training, or when
the training ended. Further, the record contains no evidence concerning
when complainant received 204-B status, when the 204-B training ended,
when complainant realized that the female employee received more training
than he did, or when he was told that he would receive no further 204-B
training. Without this information, it is impossible to determine when
complainant acquired a reasonable suspicion of discrimination.
CONCLUSION
Accordingly, the agency's dismissal of complainant's non-selection
claim is REVERSED, and the claim is REMANDED for further processing.
The agency's dismissal of complainant's 204-B training claim is VACATED,
and the claim is REMANDED for a supplemental investigation as provided
below.
ORDER
The agency is ORDERED to perform the following:
Obtain an affidavit or statement from complainant concerning the date he
requested 204-B status/training, the dates he received such training, the
dates he observed or otherwise learned that the younger female employee
received such training, the length that the training was to have been
conducted, the date he learned that the younger female employee received
more 204-B training than he received, and the date he learned that he
would no longer serve in 204-B status.
Obtain an affidavit or statement from the individual(s) responsible
for placing complainant and/or the younger female employee in 204-B
status concerning when each was given 204-B assignments, how and why the
assignments were given, when the 204-B training ended for each individual,
and when each was informed that the training was ended.
Obtain any other statements, affidavits, letters, memoranda, e-mail, or
other documentary evidence useful to determine when complainant acquired
a reasonable suspicion of discrimination with regard to receiving less
204-B training.
Based on the above-collected information, the agency shall determine
whether complainant timely contacted a counselor with regard to receiving
less training in a 204-B status.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall notify complainant whether it will process the 204-B
training claim, and provide an analysis justifying its decision. In this
notification, the agency also shall acknowledge to the complainant that it
has received the nonselection for the ASP claim. The agency shall process
the claims in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108).
A copy of the agency's notification to complainant must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
April 4, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.