The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Court
This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e2, et seq. ("Title VII"), as applied to federal employees. 42 U.S.C. § 2000e-16. Plaintiff, who initiated the action pro se but now is represented by counsel, alleges that the denial of his request for a "tour of duty transfer" constituted racial discrimination in violation of Title VII.
Defendant moves to dismiss the complaint, Fed. R. Civ. P. 12(b)(1), (6), or in the alternative, for summary judgment, Fed. R. Civ. P. 56. In response, plaintiff moves to substitute the Postmaster General as defendant. For the reasons set forth below, plaintiff's motion is granted and defendant's motion is denied.
Plaintiff was employed by the defendant, United States Postal Service ("USPS"), from June 25, 1979 to January 20, 1984. He served as a computer mark-up clerk at the General Post Office in Brooklyn, New York. In September 1980, plaintiff began a two-year day school program at Stenotype Academy. In order to attend classes, plaintiff took one hour's leave without pay each afternoon at the beginning of his work shift.
In April 1982, the duty shifts in plaintiff's unit were consolidated. As a result, plaintiff's work schedule conflicted with his studies, and he requested a transfer to another department for the duration of his academic program. Plaintiff's request was denied and, consequently, he was unable to continue his studies.
Plaintiff contends that around August 1982, he perceived a pattern of discrimination in the USPS's treatment of transfer requests. Hence, plaintiff contacted the Equal Employment Opportunity ("EEO") office on August 30, 1982. He first met with an EEO counselor on September 10, 1982, and his final interview occurred on October 27, 1982. At that time, the EEO counselor advised plaintiff both verbally and by written notice that he had fifteen days within which to file a formal complaint. Plaintiff sent a formal complaint of discrimination to the USPS on November 13, 1982, seventeen days after his final interview.
On December 27, 1982, the USPS rejected plaintiff's complaint on the grounds that he had failed to (1) contact his EEO counselor within thirty days of the alleged discriminatory event, and (2) file his formal complaint within fifteen days of his final interview with an EEO counselor.
On January 17, 1983, plaintiff filed an appeal with the Equal Employment Opportunity Commission's ("EEOC") Office of Review and Appeals. On September 22, 1983, plaintiff's appeal was denied on the ground that he had failed to file a timely complaint within fifteen days of his final interview. On November 4, 1983, plaintiff commenced this action.
Compliance with Administrative Regulations
Section 717 of Title VII provides for district court review of employment discrimination claims brought by federal employees. 42 U.S.C. § 2000e-16. A federal employee who seeks to file a court action based on Title VII must first exhaust available administrative remedies, as set forth in Section 717 and 29 C.F.R. § 1613.211 et seq. See Brown v. General Services Administration, 425 U.S. 820, 832, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976).
The regulations require that an aggrieved employee seek counseling from an EEO counselor within thirty days of the event giving rise to the charge of discrimination ("the thirty-day rule"). If the matter has not been resolved by the final interview, the counselor shall inform the complainant in writing of the right to file a formal complaint within fifteen days ("the fifteen-day rule"). 29 C.F.R. §§ 1613.214(a)(1)(i) and (ii). Both time limits may be waived by the agency if the complainant either (a) was not notified or was otherwise unaware of the rule; (b) was prevented by circumstances ...