David L. Jones, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980024 (E.E.O.C. Nov. 4, 1999)

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