05970971
08-19-1999
J.C. Gills, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
J.C. Gills v. United States Postal Service
05970971
August 19, 1999
J.C. Gills, )
Appellant, )
) Request No. 05970971
v. ) Appeal No. 01966742
) Agency No. 4F-913-1085-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
__________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On August 16, 1997, J.C. Gills (hereinafter referred to as the appellant)
timely initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in J.C. Gills v. Marvin
T. Runyon, Jr., Postmaster General, United States Postal Service,
EEOC Appeal No. 01966742 (July 16, 1997), received on July 18, 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 a 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 that follow, appellant's
request is denied. The Commission, however, has decided to reconsider
the previous decision on its own motion.
The issues on appeal are whether appellant's request for reconsideration
meets the criteria for reconsideration that is set forth at 29
C.F.R. �1614.407(c); and whether the previous decision failed to address
appellant's allegation concerning prior nonselections.
Appellant filed a complaint that alleged discrimination based on age
(DOB: 10/2/28) when, on March 20, 1996, he made a written request for
a detail assignment to a 204-B position, but never received a response
from management (allegation (1)). Appellant also alleged that he applied
for positions in the past, but was never selected. The agency dismissed
appellant's complaint on the grounds that he failed to state a claim.
According to the agency, appellant did not suffer a personal loss or harm
with respect to a term, condition, or privilege of employment for which
there was a remedy, because, at the time he submitted his request, there
were no detail assignments for 204-B positions available. The agency
did not address appellant's contention concerning past nonselections.
On appeal, appellant argued that he was aggrieved because the agency's
failure to respond to his request was a denial of a promotional
opportunity. Furthermore, he maintained that he suffered an economic and
emotional harm, and a loss of reputation because of the agency's actions.
The agency, according to appellant, engaged in a pattern of denying his
promotion applications and opportunities over a two year period.
The previous decision affirmed the dismissal of appellant's complaint.
According to the decision, appellant failed to show how he was harmed
with regard to allegation (1), since there was no evidence that a 204-B
detail assignment was either available or made. The previous decision,
concluding that appellant "[d]id not challenge the agency's framing of
the allegation," did not address appellant's contention that he had also
been nonselected over the prior two year period.
In his reconsideration request (request), appellant, in large part, raised
considerations that went to the merits of his complaint. For example,
he questioned the sufficiency of the agency's investigation because
there was no information regarding the ages and qualifications of the
selectees for the detail assignments he sought. Appellant also maintained
that "[h]is repeated unsuccessful attempts to obtain a 204-B detail
assignment or to be selected for another promotional position raise[d]
a strong inference of age discrimination." Finally, appellant argued
that the previous decision erred in finding that he was not aggrieved,
and that the previous decision was of such an exceptional nature as to
have substantial precedential implications. The agency opposed the
request on the grounds that appellant did not meet any criteria set
forth at 29 C.F.R. �1614.407(c).
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. �1614.407(c) is
met. The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A reconsideration request is not merely a form of a
second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September
7, 1990). Instead, it is an opportunity to submit newly discovered
evidence, not previously available; to establish substantive error in
a previous decision; or to explain why the previous decision will have
effects beyond the case at hand. Lyke v. United States Postal Service,
EEOC Request No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds that
appellant's request does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). We concur with the previous decision's determination
that appellant was not aggrieved with respect to the agency's failure
to respond to his unsolicited March 20, 1996 request. There is no
persuasive evidence that, at the time he submitted his request, a 204-B
assignment existed. As noted by the previous decision, a complainant is
not aggrieved when he submits an unsolicited application for a position
for which no vacancy exists. See Pletten v. Department of the Army, EEOC
Request No. 05940706 (February 24, 1995). We also find no persuasive
evidence that the previous decision is of such an exceptional nature as
to have substantial precedential implications.<1>
Notwithstanding the above, the Commission has decided to reconsider this
matter on its own motion. We find that both the agency and the previous
decision erred by not addressing appellant's contention that he was
denied promotional opportunities in the past. Although appellant did not
specifically challenge the agency's framing of his allegation, the fact
remains that a major portion of his appeal was devoted to this issue.
According to appellant, he applied for various promotional positions,
commencing in 1994, but never received any definitive explanation
as to why his applications were rejected. According to appellant, he
received a letter dated November 10, 1994, signed by an agency official,
and entitled "Notice of Non-Selection." The letter concerned appellant's
nonselection for the position of Supervisor, Customer Service at the Santa
Clarita Post Office (allegation (2)). Appellant also noted his receipt
of a letter dated September 29, 1995, signed by the Manager, Operations
Programs Support, concerning appellant's request that he be considered
for a 204-B position (allegation (3)). Appellant, in the letter, was
told that he needed to make his request to his immediate supervisor.
Finally, on appeal, appellant indicated that on May 7, 1996, the EEO
counselor advised him to contact the Labor Relations office in order to
request a detail assignment in that department. According to appellant,
he did so, but "[t]o this date that matter was never resolved."
Unlike allegation (1), allegations (2) and (3) appear to have been actual
assignments for which appellant could have been selected. We note,
however, that the Commission's regulations require that an aggrieved
person initiate contact with an EEO counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. �1614.105(a)(1).
The 45-day time limit to seek counseling, however, is subject to extension
under the continuing violation rule. In Sabree v. United Brotherhood
of Carpenters and Local Joiners, 921 F.2d 396 (1st Cir. 1990), two
types of continuing violations were identified: serial violations and
systemic violations. Id. at 400. Generally, a serial violation consists
of a number of discriminatory acts emanating from the same discriminatory
animus, each act constituting a separate wrong actionable under Title VII.
Id. at 400.<2> Hereinafter, in this decision, the term continuing
violation will only pertain to the serial type of violation.
When a continuing violation is properly alleged, the normal time limit
for filing a formal EEO complaint is suspended. Rowan v. Department of
Transportation, EEOC Request No. 05940661 (February 24, 1995). If at
least one of the acts complained of falls within the limitations period,
a complaint filed at any time within this period is timely filed with
respect to all acts which are part of the continuing violation. Id.
An essential ingredient of a continuing violation is an analogous theme
uniting the timely and untimely acts of alleged discrimination by the
employer into a continuous pattern. Id.
In the present case, appellant maintained that the agency engaged in a
pattern of denying his promotion applications and opportunities over a two
year period of time. We find that appellant has failed to establish that
a continuing violation has occurred. As previously noted, a continuing
violation requires that at least one of the alleged discriminatory
acts must fall within the time limitation period. Appellant sought EEO
counseling on April 2, 1996; therefore, the time limitation period began
45-days earlier, on February 17, 1996. Allegation (1) was the only matter
that occurred during the period in question. Since, however, we have
affirmed the agency's dismissal of allegation (1) on the grounds that
it failed to state claim, we find that appellant no longer has a timely
allegation remaining. Therefore, he has failed to establish a continuing
violation in this case. Consequently, we find that appellant's April 2,
1996 counselor contact was untimely with regard to both allegations (2)
and (3).
After a review of appellant's request to reconsider, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to deny
the request. The Commission, however, has decided to reconsider the
decision in EEOC Appeal No. 01966742 (July 16, 1997) on its own motion.
The decision, as MODIFIED, remains the Commission's final decision.
There is no further right of administrative appeal from that portion of
our decision pertaining to allegation (1).
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RECONSIDERATION (M0795), modified
With regard to that portion of our decision pertaining to allegations
(2) and (3), the Commission may, in its discretion, reconsider its
determination if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
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:
August 19, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1We advise appellant that an agency may dismiss a complaint, for reasons
outlined in 29 C.F.R. �1614.107, without conducting an investigation
into the actual merits of the complaint. Likewise, although he argued
on appeal that he suffered an economic and emotional harm, and a loss of
reputation, the Commission has held that where an allegation fails to
state a claim, a request for compensatory damages will not render the
complainant aggrieved. Girard v. Department of Treasury, EEOC Request
No. 05940379 (September 9, 1994).
2With regard to systemic violations, the court held that there need not
be an identifiable discrete act of discrimination transpiring within
the limitations period. Id. at 400. According to the court, "[a]
systemic violation has its roots in a discriminatory policy or practice;
so long as the policy or practice itself continues into the limitations
period, a challenger may be deemed to have filed a timely complaint."
Id. at 400.