Dennis A. Sherman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 4, 2000
01992121 (E.E.O.C. Apr. 4, 2000)

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.