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.