James E. Davis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 30, 1999
05970980 (E.E.O.C. Sep. 30, 1999)

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.