05970980
09-30-1999
James E. Davis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James E. Davis, )
Appellant, )
) Request No. 05970980
v. ) Appeal No. 01966186
) Agency No. 4B-028-1053-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On August 7, 1997, the United States Postal Service (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider the
decision in James E. Davis v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service, EEOC Appeal No. 01966186 (July 25, 1997).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous 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 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 herein, the agency's request is denied.
On our own motion, however, we reconsider the previous decision.
The issue presented is whether the previous decision properly remanded
appellant's complaint for processing.
On May 15, 1996, appellant contacted an EEO counselor and, on June 6,
1996, he filed a formal complaint alleging discrimination based on
race and reprisal with regard to a non-selection that he learned about
on November 15, 1995. The agency dismissed appellant's complaint for
untimely contact with an EEO counselor, and appellant filed an appeal.
The previous decision, in remanding the complaint, found that appellant
had timely raised the allegation at issue when he sent letters to the
Commission on December 11 and 12, 1995, in conjunction with an earlier
appeal timely filed on April 28, 1995, and that the agency had therefore
been "put on notice" that appellant was raising the instant allegation
at the time of those letters.<1>
The agency has filed a request to reconsider the previous decision on
the grounds that the decision was in error concerning a material fact.
The agency asserts that it was not aware of appellant's allegation until
his EEO contact in May 1996, because appellant did not send copies of
his December 1995 letters to the agency, as required in the legal notice
and by Commission regulations. In addition, the agency contends that the
December 1995 letters do not evidence an intent to initiate a complaint
in the EEO process as to the instant allegation, and appellant first
brought these matters to the attention of the agency on May 15, 1996.<2>
Appellant did not respond or provide comments in response to the agency's
request. We note, in addition, that appellant has previously filed EEO
complaints, as well as appeals to the Commission from agency decisions.
See EEOC Appeal Nos. 01953975 and 01970631.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record and submissions of the
parties, we find that the agency's request does not meet the criteria of
29 C.F.R. �1614.407(c)(2). On our own motion, however, we reconsider
the previous decision and hold that the agency properly dismissed
appellant's complaint for untimely EEO contact. The agency's request
is grounded on the question of whether appellant exhibited an intent to
initiate a complaint with the agency through his December 1995 letters to
the Commission.<3> In our view, we need not address appellant's intent
and, instead, find that appellant, as an experienced and knowledgeable
participant in the EEO process, knew that EEO complaints are initiated
through timely contact with an EEO counselor. Since his contact with an
EEO counselor was well beyond 45 days after he became aware of the event,
appellant's complaint was properly dismissed. 29 C.F.R. �1614.107(a).
We must also correct the previous decision's factual determination that
appellant provided notice to the agency through copies of his December
1995 letters. The record supports the agency's contention that appellant
did not send copies of his December 1995 letters to the agency, in that,
the copies of appellant's letters do not contain an indication that
service was made on the agency, and appellant has not contended nor
shown that he did so.<4> Consequently, to the extent that the previous
decision's remand rested on a finding that the agency was on notice,
the decision erred, in that, the record does not support that finding.
The Commission's regulations require that a complainant bring
his/her complaint to the attention of an EEO counselor within 45
days of an alleged discriminatory event or the effective date of an
alleged discriminatory personnel action. 29 C.F.R. �1614.105(a)(1).
The regulations provide that the 45-day time period may be extended where
a complainant shows, inter alia, that s/he was unaware of the time limits
or reasonably did not have knowledge that the discrimination occurred.
29 C.F.R. �1614.105(a)(2). In the matter before us, appellant has not
presented reasons or explanation for his untimely EEO contact. Further,
appellant has experience in the EEO process, and we find that he was
informed of the time limits for filing an EEO complaint. See Gauthier
v. USPS, EEOC Request No. 05981064 (January 22, 1999). Finally, we note
that appellant was advised of his obligation to provide copies of all
correspondence to the agency. Since appellant's EEO contact was beyond
the 45-day limitation period, it was untimely, and the complaint was
properly dismissed. The agency's final decision is AFFIRMED.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c). It is
therefore the decision of the Commission to deny the agency's request.
On its own motion, the Commission reconsiders the previous decision.
Upon reconsideration, the decision in EEOC Appeal No. 01966186 (July
25, 1997) is REVERSED, and the agency's final decision is AFFIRMED.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON 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:
09-30-99
Date Frances M. Hart
Executive Officer
1 In a complaint filed on February 1,
1994, appellant alleged discrimination
based on race (black) when he was not
selected for a similar position as the one
at issue herein. Following a finding of
no discrimination by an Administrative
Judge and the agency, appellant filed
the appeal on April 28, 1995. In EEOC
Appeal No. 01953975 (October 25, 1996),
the Commission affirmed the finding of
no discrimination. In that decision,
with regard to the December 1995 letters,
the Commission directed appellant to
seek EEO counseling if he wished to
pursue the matter.
2The agency also argues that, according to 29 C.F.R. �1614.403(b), the
December 1995 letters were an untimely addendum to appellant's April
1995 appeal and should have been ignored by the Commission.
3In support, the agency cites the Commission's decision in Gates
v. Department of the Air Force, EEOC Request no. 05910798 (November
22, 1991).
4Appellant submitted a return receipt form showing he mailed letters to
the Commission in December 1995, but does not provide a similar receipt
demonstrating a mailing to the agency.