Donald W. Sieler, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 10, 2004
01a32901 (E.E.O.C. Feb. 10, 2004)

01a32901

02-10-2004

Donald W. Sieler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Donald W. Sieler v. United States Postal Service

01A32901

February 10, 2004

.

Donald W. Sieler,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No.01A32901

Agency No. 4G-760-0119-03

DECISION

Complainant filed a timely appeal with this Commission from the

final agency decision 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.

On December 12, 2002, complainant contacted the EEO office claiming that

he was discriminated on the bases of sex and age. Informal efforts to

resolve complainant's concerns were unsuccessful.

On January 24, 2003, complainant filed a formal complaint claiming that on

April 5, 1995, he was issued a letter of demand for insurance premiums

that the agency erroneously failed to withhold. Complainant stated

that he subsequently filed a request for a waiver but it was denied.

Complainant also stated that he filed an appeal which was denied, and

as a consequence, the agency deducted $678.60 from his retirement pay.

Complainant claimed that he was denied a waiver while other employees, in

similar circumstances, had received such waivers through the grievance

process. Complainant claimed that he was enjoined from using the

grievance process because he was a retired employee at the time of the

alleged action.

On March 12, 2003, the agency issued a final decision dismissing

the complaint for untimely EEO Counselor contact after finding that

although complainant received his first denial of waiver on November 21,

1995, complainant did not seek EEO Counseling until December 12, 2002.

The agency also dismissed the complaint for failure to state a claim

finding that since complainant was not an employee at the time of the

alleged discriminatory action, he was not �aggrieved.�

On appeal, complainant acknowledges that for the past eight years

he unsuccessfully attempted to have his request for waiver approved.

Complainant also stated that he requested assistance from the Office

of Personnel Management to challenge the agency's action. Complainant

contends that it was not until September 2002, that he became aware of

the alleged discrimination when he discovered four grievance decisions

where other employees were granted waivers in identical circumstances.

Complainant included in the record copies of the grievances dated June

29, 1978, October 25, 1981, December 14, 1987, and May 15, 1990.

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 determines that complainant failed to timely seek

EEO Counseling regarding the matter raised in the instant complaint.

Internal appeals, grievances or informal efforts to challenge an agency's

adverse action do not toll the running of the time to contact an EEO

Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request

No. 05890030 (June 9, 1989). Therefore, the fact that from 1995 to 2002

complainant attempted to obtain a waiver from the agency, did not toll

the 45-day time limit. We are not persuaded by complainant's argument

that he did not suspect discrimination until September 2002, when he

discovered four cases granting waivers under similar circumstances.

Complainant did not seek EEO Counseling until approximately seven years

after he allegedly received the demand letter and his waiver was denied,

in 1995. The Commission has consistently held that complainant must

act with due diligence in the pursuit of their claims or the doctrine

of laches may be applied. O'Dell v. Department of Health and Human

Services, EEOC Request No. 05901130 (December 27, 1990). Accordingly,

the agency's final decision dismissing complainant's complaint for

untimely EEO Counselor contact is Affirmed.<1>

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

February 10, 2004

__________________

Date

1Because we are affirming the agency's

dismissal on the grounds of untimely EEO Counselor contact, we will not

address the agency's alternative grounds for dismissal.