Timothy Ulmer, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 16, 2004
01a45073 (E.E.O.C. Nov. 16, 2004)

01a45073

11-16-2004

Timothy Ulmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Timothy Ulmer v. United States Postal Service

01A45073

November 16, 2004

.

Timothy Ulmer,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45073

Agency No. 4A-088-0047-04

DECISION

Upon review, the Commission finds that complainant's complaint was

improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact.

On February 26, 2004, initiated contact with an EEO Counselor, claiming

that he was the victim of unlawful employment discrimination on the bases

of race and sex.<1> Complainant alleged that on February 17, 2004, he

found out that the Maintenance Manager �conveniently lost� and failed to

transact his Preferred Assigned Request (PAR) dated November 25, 2003,

that would have entitled him to a custodial position that was awarded to

a white female employee effective November 29, 2003. Complainant claimed

that because he submitted a timely bid for the position and he was already

in the Maintenance Craft, his bid should have been considered before

the white female employee's request for reassignment from another craft.

Informal efforts to resolve his concerns were unsuccessful. On May 27,

2004, complainant filed the instant formal complaint.

On June 25, 2004, the agency issued a final decision. Therein, the

agency noted that complainant asserted that he bid on a Preferred Duty

Assignment on November 7, 2003; that agency management acknowledged his

bid on November 25, 2003; and that on November 29, 2003, the bid was

awarded to another employee. The agency determined that complainant's

complaint was comprised of the claim that his bid for a position that

was awarded on November 29, 2003, was not processed, and that he only

learned of the agency's failure to process the bid on February 17, 2004.

The agency dismissed the complaint on the grounds that complainant failed

to initiate contact with an EEO Counselor in a timely fashion.

On appeal, complainant argues that in the first week of December 2003,

he contacted an agency official regarding a female employee receiving the

subject bid on November 29, 2003; and that the agency official indicated

that if complainant had any questions on this matter, he should contact

his union. Complainant states that he was thereafter repeatedly told by

a shop steward that he (the shop steward), would contact complainant on

this matter, but that the shop steward did not do so. Complainant further

states that he was ordered on active duty for a deployment in Turkey

with his National Guard squadron from December 16, 2003, until February

13, 2004; and that upon his return, he contacted an agency official

on February 17, 2004, regarding the bid award, and that the official

informed complainant that �he did not have a PAR dated 25 Nov 2003 from

me.� Complainant argues that he only developed a reasonable suspicion

of unlawful employment discrimination after this conversation, and timely

contacted an EEO Counselor shortly thereafter, on February 26, 2004.

The Commission determines that complainant had, or should have had,

a reasonable suspicion of unlawful employment discrimination in early

December 2003, when he contacted an agency official regarding a female

employee receiving the subject bid. Given this reasonable suspicion

date, complainant ordinarily would have had until mid -January 2004,

in which to timely contact an EEO Counselor. However, in this case,

the record supports a determination that complainant was deployed on

active duty to Turkey with his National Guard squadron from December 16,

2003, until February 13, 2004. We find that for this period of deployment

(December 16, 2003 until February 13, 2004), the forty-five day limitation

period is tolled. The record reflects that upon complainant's return from

Turkey in mid-February 2004, complainant initiated EEO Counselor contact

on February 26, 2004. As a result of the period when the limitation

period was tolled due to complainant's National Guard duty, the Commission

determines that complainant's EEO Counselor contact was timely.

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED and 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

November 16, 2004

__________________

Date

1In its final decision, the agency inadvertently stated that complainant's

initial EEO Counselor contact occurred on April 26, 2004; however, on

appeal, it acknowledges that the initial EEO Counselor contact date was

February 26, 2004.