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.