01a43685
11-08-2004
Daniel R. Griffin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel R. Griffin v. United States Postal Service
01A43685
11/8/2004
.
Daniel R. Griffin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43685
Agency No. 4-H-300-0279-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 29, 2004, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On August 26, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. In his
formal complaint, filed on March 1, 2004, complainant alleged that he
was subjected to discrimination on the bases of race, sex, and age.<1>
In its final decision dated April 29, 2004, the agency determined that
complainant's complaint was comprised of the following claim:
[Complainant] received a letter on July 28, 2003, stating that the
[agency] would not reimburse [his] tuition request without prior approval
from local management.
The agency dismissed complainant's complaint for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the
agency stated that �[complainant] should have reasonably suspected
discriminatory motives when [his] request was initially denied, which
was in September 200[1].�<2>
On appeal, complainant, through his representative asserts that he
discussed his tuition reimbursement request with numerous agency officials
and was given the �run around.� Furthermore, complainant states that
he timely initiated EEO Counselor contact after he received a letter in
July 2003, denying his tuition reimbursement request.
In response, the agency requests that we affirm its final decision.
The agency states that on March 7, 2003, complainant met with the
Postmaster of Atlanta and �was informed in no uncertain terms that
he would not be reimbursed for his expenses in seeking his MBA.� In
addition, the agency states that complainant admits that he began his
course work prior to receiving approval for tuition reimbursement.
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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the agency improperly dismissed complainant's
complaint on the grounds of untimely EEO Counselor contact. The record
contains a Tuition Reimbursement Request form signed by complainant dated
August 8, 2001. The agency stated in its final decision that complainant
should have suspected discrimination in September 2001, when complainant's
request was initially denied; however, the record is devoid of evidence
that the agency denied his request in September 2001.
Moreover, on appeal, the agency argues that the Atlanta Postmaster
(P1) expressly denied complainant's request in March 2003; however, the
record does not clearly support this assertion. In an attachment to his
formal complaint, complainant states that he met with P1 on March 7,
2003; however, complainant does not expressly assert that P1 denied his
request. Instead, complainant asserts that P1 stated �it was a little
too late after the completing of [his] degree... [and that] she knew
nothing about [his] issues regarding college tuition reimbursement.�
Moreover, complainant's representative, in an undated letter to the
Commission, states that �at no time was [complainant] told by [P1]
that he would point blank not receive tuition [reimbursement].�
In his formal complaint and on appeal, complainant states that he
initiated the paperwork for his request in August 2001, and that he
pursued the matter with numerous agency officials regarding the status of
his request but that he received the �run around.� The record contains
a letter from the agency's Manager Employee Development (M1) dated July
21, 2003. Therein, M1 states that �[u]nless local management approves
your request for reimbursement, the [agency] will not reimburse you
for tuition expenses.� The record also contains a copy of a letter
dated December 19, 2003, from the Tuition Reimbursement Coordinator,
informing complainant that the agency was denying complainant's tuition
reimbursement request. Based on these circumstances, we find that
complainant's initial EEO Counselor contact on August 26, 2003 was timely.
Accordingly, the final agency decision dismissing the instant complaint
is REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
11/8/2004
Date
1Complainant requested a hearing before an EEOC
Administrative Judge (AJ) on January 23, 2004. By Order of Dismissal,
dated April 8, 2004, the AJ denied complainant's request for a hearing
because �complainant prematurely submitted his request for a hearing
before he filed a formal complaint.� The Commission finds that the AJ's
denial of complainant's request for a hearing was proper. The record
reflects that complainant requested a hearing on January 23, 2004;
however, complainant did not file a formal complaint until March 1, 2004.
2In its final decision, the agency stated that complainant's request
was initially denied in September 2000; however, the Commission presumes
that the agency meant September 2001, because, the record reflects that
complainant did not initiate his tuition reimbursement request until
August 2001.