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.