05980024
11-04-1999
David L. Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David L. Jones v. United States Postal Service
05980024
November 4, 1999
David L. Jones, )
Appellant, )
)
v. ) Request No. 05980024
) Appeal No. 01971623
William J. Henderson, ) Agency No. 4F-945-1126-96
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
Appellant timely initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in David L. Jones v. Marvin
T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC
Appeal No. 01971623 (September 25, 1997). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. � 1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. � 1614.407(c)(2); and
the previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. � 1614.407(c)(3). For the reasons
set forth below, the Commission denies appellant's request.
Appellant filed a complaint in which he alleged that the agency
discriminated against him on the bases of race (White), disability
(chronic back condition, depression), and reprisal by:
Notifying him, on November 9, 1995, that he would receive only forty
hours of out-of-schedule pay; and
Reassigning him to the Airport Station, effective December 9, 1995.
The agency dismissed allegation (1), on the ground that appellant
failed to timely contact an EEO counselor, but accepted allegation (2).
The previous decision summarily affirmed.
Commission regulations require complainants who believe that they had
been discriminated against to contact an EEO counselor within 45 days
of the alleged discriminatory incident. 29 C.F.R. � 1614.105(a)(1).
In this case, appellant acknowledged that he was told on November
9, 1995, that he would not receive additional out-of-schedule pay.
The counselor's report indicates that appellant first contacted an EEO
counselor on January 8, 1996. It appears that appellant did not contact
an EEO counselor until more than 45 days had elapsed.
The 45-day time period for contacting an EEO counselor is triggered as
soon as the complainant reasonably suspects discrimination, not when
all the facts supporting an inference of discrimination become apparent.
Peets v. United States Postal Service, EEOC Request No. 05950725 (March
28, 1996); Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990). In both his appeal and his request for reconsideration,
appellant indicated that he had filed a number of other EEO complaints,
before and after the incident at issue in allegation (1). In light of
appellant's experience with the administrative EEO complaints process, we
find that he should have reasonably suspected discrimination on November
9, 1995, the day the agency notified him of its decision regarding his
out-of-schedule pay.
The agency must extend the 45-day time limit if appellant 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 had 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. 29 C.F.R. � 1614.105(a)(2). Appellant has not presented any
arguments or evidence, either in his appeal statement or in his request
for reconsideration, that addresses any of the grounds for extending the
45-day time limit for contacting a counselor. We therefore find that the
agency correctly dismissed allegation (1) for untimely counselor contact.
Nevertheless, we remind the agency of its obligation to thoroughly
investigate all of the circumstances under which the alleged
discrimination occurred. See EEOC Management Directive 110 5-4 (October
22, 1992). The fact that allegation (1) was untimely does not relieve the
agency of its obligation to investigate that allegation as background
evidence to the extent that it is relevant to the Airport Station
reassignment at issue in allegation (2). See Ferguson v. Department of
Justice, EEOC Request No. 05970792 (March 30, 1999).
Finally, we note that appellant identifies twelve other complaints, at
various stages of processing. None of these complaints are currently
before us. We advise the agency, however, that the regulations set
forth in 29 C.F.R. Part 1614, as amended, will require consolidation of
any pending investigations involving the same complainant.
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request does not meet the criteria
of 29 C.F.R. � 1614.407(c), and it is the decision of the Commission
to deny appellant's request. The decision of the Commission in Appeal
No. 01971623 remains the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 4, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat