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.