Nathaniel C. Spikes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 25, 2000
01A03981 (E.E.O.C. Aug. 25, 2000)

01A03981

08-25-2000

Nathaniel C. Spikes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Nathaniel C. Spikes v. United States Postal Service

01A03981

August 25, 2000

.

Nathaniel C. Spikes,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03981

Agency No. 4-H-330-0287-99

DECISION

On May 16, 2000, complainant filed a timely appeal with this Commission

from an agency's decision regarding 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.; the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts the appeal

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. �1614.405).

On April 9, 1999, complainant contacted the EEO office regarding

claims of discrimination based on race, age, and mental disability.

Specifically, complainant claimed he was discriminated against when

from February 1985 until April 6, 1999, he was denied and continued to

be denied reinstatement to an agency position. Informal efforts to

resolve complainant's concerns were unsuccessful. On July 8, 1999,

complainant filed a formal complaint addressing the same matter for

which he underwent EEO counseling.

On April 12, 2000, the agency issued a decision dismissing the

complaint for untimely EEO Counselor contact. The agency determined

that complainant initially applied for reinstatement in February 1993

; that his application was denied; and that thereafter, in June 1997,

complainant again requested and was denied reinstatement. According to

the agency, complainant's contact was untimely because �[t]he time limit

for contacting an EEO Counselor began to run with the initial denial ....�

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 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 she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The record provides no evidence that complainant was unaware of the

forty-five-day time period for contacting an EEO Counselor. Moreover,

complainant does not contend that he lacks awareness of the limitation

period. Additionally, complainant provided no evidence that he was

prevented by circumstances beyond his control from contacting the

EEO office within the specified time limits. Finally, we note that

complainant argues that the alleged discrimination started in February

1993, when he was initially denied reinstatement, and he �continue[s]

to be denied until this day.�

The Commission has held that a complainant may not extend the limitation

period for EEO Counselor contact merely by resubmitting an additional

request for reinstatement. See Cramer v. United States Postal Service,

EEOC Appeal No 01911326 (August 16, 1991); request for reconsideration

denied, EEOC Request No. 05910908 (January 7, 1992). Otherwise a

complainant could indefinitely extend the limitation period by repeatedly

renewing his or her request for reinstatement. Id.

Here, the record shows that complainant's initial request was denied

on February 4, 1993. His later requests for reinstatement are not

distinctive from the first request, except that they were made at a

different time, i.e., there is no record of any change in circumstances

such that complainant would have a reasonable expectation of a different

result to his subsequent requests for reinstatement. Complainant's

subsequent requests for reinstatement and denials by the agency do not

constitute independent acts that can be used to trigger new limitations

periods. Therefore, the Commission finds that complainant's April 9,

1999 EEO Counselor contact was not timely. Accordingly, the agency's

decision dismissing the complaint was proper and is hereby 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, Director

Office of Federal Operations

August 25, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative 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.