Alfred C. Nelson, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01a02853 (E.E.O.C. Aug. 8, 2000)

01a02853

08-08-2000

Alfred C. Nelson, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Alfred C. Nelson v. Social Security Administration

01A02853

August 8, 2000

.

Alfred C. Nelson,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A02853

Agency No. 001500SSA

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision (FAD) dated December 21, 1999, 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.<1> In his complaint, complainant alleges that he was subjected to

discrimination on the basis of reprisal, sex (male), and age (over 40)

when:

(1) on September 17, 1999, his request for a hardship transfer was denied;

and

(2) on an unspecified date he was not selected for the position of

Contact Representative (CR), GS-962-8.

By FAD dated December 21, 1999, the agency dismissed issue (1) for failure

to state a claim, and dismissed issue (2) for untimely counselor contact.

From this FAD complainant now appeals.

With respect to issue (1) complainant avers that the agency denied his

request for a hardship transfer in retaliation for a letter writing

campaign that he initiated against the agency. A prima facie case of

retaliation is established where complainant has produced sufficient

evidence to show that (1) he engaged in protected activity; (2) the

agency was aware of his participation in the protected activity; (3)

he was subjected to an adverse employment action; and (4) a nexus exists

between the protected activity and the agency's adverse action. Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318,

324 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976); Van Druff

v. Department of Defense, EEOC Appeal No. 01962398 (February 1, 1999).

We find that complainant's letter writing campaign was not protected

activity. Protected activity is that activity which either opposes a

practice made unlawful by one of the employment discrimination statutes

(the "opposition" clause); or filing a charge, testifying, assisting,

or participating in any manner in an investigation, proceeding, or

hearing under the applicable statute (the "participation" clause).

EEOC Compliance Manual Section 8,�Retaliation�; No. 915.003 (May 20,

1998), p.8-1. Complainant failed to provide any evidence that his

letter writing campaign was protected activity. Moreover, complainant

failed to establish that he previously engaged in any protected activity.

Accordingly, we agree with the agency that complainant failed to establish

reprisal with respect to issue (1).

The agency dismissed issue (2) for untimely EEO counselor contact.

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 he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

In the instant case, the record reflects that the complainant indicated

the discriminatory event occurred on August 26, 1999. The complaint

did not contact an EEO counselor until October 19, 1999, which is beyond

the forty-five (45) day time limitation. On appeal, the complainant has

offered no persuasive evidence to warrant an extension of the time limit.

Accordingly, the agency's dismissal of the complaint for failure to

state a claim and untimely counselor contact was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

August 8, 2000

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector process went into effect. These regulations apply to all federal

sector complaints pending at any stage in the administractive process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37, 644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.