David Ball, Appellant,
v.
Anthony M. Frank, Postmaster General, United States Postal Service, (ER), Agency.

Request No. 
05880247
Appeal No. 01871261
Agency No. 2L-0023-7

July 06, 1988

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On January 14, 1988, the United States Postal Service (hereinafter referred to as the agency) initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in David Ball v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01871261 (December 24, 1987) (previously captioned as David Ball v. United States Postal Service). The agency bases its request on EEOC Regulation 29 C.F.R. 1613.235(b)(2) (where the previous decision involves an erroneous interpretation of law or regulation). For the reasons set forth herein, the agency's request is denied.

ISSUE PRESENTED

The issue presented herein is whether the Commission's previous decision properly vacated the agency's final decision, wherein the agency had rejected appellant's complaint on the ground that the appellant failed to seek EEO counseling in a timely fashion.

BACKGROUND

On February 3, 1986, the appellant was advised that he had been rated as ineligible for the Promotion Eligibility Register (PER) for maintenance craft employees. The appellant filed a grievance in accordance with the collective bargaining agreement, which was denied at Step II of the grievance procedure on May 13, 1986. In filing his grievance, the appellant expressed the belief that he had been disqualified in retaliation for his union activities. On November 5, 1986, the appellant became aware that a black male, whom appellant maintains was unqualified, had been promoted to the position of Area Maintenance Technician (AMT). The promotion was made from the PER for which the appellant had been rated as ineligible. The appellant sought EEO counseling on November 6, 1986, alleging racial discrimination. In its final decision, the agency rejected the appellant's complaint on the ground that the appellant had failed to seek EEO counseling in a timely fashion. Thereafter, the appellant appealed the final agency decision to this Commission. In its December 24, 1987 decision, the Commission vacated the final agency decision, finding that the appellant had contacted an EEO Counselor in a timely fashion, and remanded the complaint to the agency for further processing in accordance with that decision and the appropriate equal employment opportunity complaint processing procedures. The Commission determined that the appellant did not know of facts which would indicate that he was discriminated against, nor should be reasonably have been expected to know such facts, until the selection from the PER was made on November 5, 1986.

The record on appeal showed that the appellant had taken the written exam for the AMT PER on November 25-27, 1985, and was informed that he was ineligible for the roster by the agency by notice mailed February 3, 1986. The appellant attempted to retake the exam on March 10, 1986, but no exam was forwarded by the Test Center for him. It is apparent from the record that the appellant was considered ineligible for the PER based on his test score and on poor supervisory evaluations. The selectee took the AMT exam in June 1986, and received an eligibility rating of 57.8 on September 11, 1986. The point was not argued by either the agency or the appellant, but it appears from the record that the selection of November 5, 1986 was the first selection off the PER in question since the time the appellant was found ineligible in February 1986. In his complaint, the appellant questions how a 57.8 can be an eligible rating, and argues that his supervisory evaluations were unfair and too low.

In its request to reopen, the agency argues that the appellant was not a candidate for the position of AMT in that his name was not on the PER on November 5, 1986; that the appellant was aware that he was ineligible for promotion to the AMT position in February 1986; and that:

it is not within the intent or spirit of the Commission's regulations to allow the (appellant) to utilize the EEO procedures to attain a re-evaluation and retroactive promotion, in this instance case, by indicating the date of incident as November 05, 1986.

ANALYSIS AND FINDINGS

The agency bases its request to reopen on 29 C.F.R. 1613.235(b)(2). This provision authorizes a discretionary review of a previous Commission decision where the party requesting reopening submits written argument or evidence which tends to establish that the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy. The scope of the Commission's review on a request to reopen is narrow. In order for a previous decision to be reopened, the request to reopen must contain specific information which meets the criteria referenced in 29 C.F.R. 1613.235.

First, we noted that the original decision in this case did not indicate that the date of the alleged discriminatory act was November 5, 1986. We interpret the appellant's complaint as alleging a discriminatorily motivated rating of ineligible for the AMT roster in February 1986. The event which led him to believe that his February rating was in fact motivated by race discrimination was the November 5, 1986 promotion of a back employee who he believed to be unqualified. Further, contrary to the implication of the agency's argument in its request to reopen, our previous decision did not 'allow (the appellant) to utilize the EEO procedures to attain (relief) ... by indicating the date of incident....' The previous decision in this case did not address the merits of the appellant's case, or consider relief. The previous decision and the instant request are properly restricted to the issue of the appellant's bringing the subject matter of this complaint to the attention of an EEO Counselor in a timely manner under 29 C.F.R. 1613.214(a)(1)(i).

EEOC Regulation 29 C.F.R. 1613.214(a)(1)(i) provides that any agency may accept a complaint for processing only if the complainant brought to the attention of the EEO Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date.

In the present case, the issue arises as to what is sufficient to trigger the 30 day time period to cause appellant to believe he had been discriminated against. In Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), the court held that the limitations period did not begin to run until facts that would support a charge of discrimination were apparent or should have been apparent to a reasonable person. Moreover, in Myles v. Schlesinger, 436 F. Supp. 8 (E.D. Pa. 1976), the court held that the limitations period is not triggered until a complainant reasonably suspects discrimination. This 'reasonable suspicion' standard was endorsed by the court in Paredes v. Nagle, 27 FEP 1345 (D.D.C. 1982). Addressing the issue of which standard to Employ, the Paredes court noted:

This reasonable suspicion standard, as opposed to some type of 'supportive facts' standard, appears to be the best triggering standard for this situation; it is an effective middle ground position which accommodates both the desire to prevent the filing of frivolous, unfounded complaints and the desire to get these discrimination matters promptly into the agency's investigation and conciliation channels. Id. at 1347.

After reviewing the triggering standards (i.e., mere feeling, supportive facts, reasonable suspicion) noted in relevant case law, the Commission finds that the 'reasonable suspicion' standard should be utilized when the interpretation of EEOC Regulation 29 C.F.R. 1613.214(a)(1)(i) is called into question.

In the present case the appellant apparently believed his rating in February 198l was unfair, as evidenced by his filing a grievance. No facts which would support a charge of discrimination were apparent or should have been apparent to a reasonable person, however, until the selection of someone outside the appellant's protected group was made off the register on November 5, 1986. Based on the facts before us, the period from rating an individual as eligible or not eligible for a PER until the next selection from the PER appears to be one long selection process. Had the appellant filed an EEO complaint in February 1986, it could have been considered frivolous, as the appellant had no facts available to him to support a claim of race discrimination. The thrust of the appellant's complaint is that he was evaluated and rated for the PER under different criteria than were applied to the selectee. We do not believe it prejudices the agency to have this entire selection process challenged by an unsuccessful applicant for promotion. In light of Parades, supra, and the other cases cited above, we find that the appellant brought the matter in question to the attention of an EEO Counselor in a timely fashion upon learning facts which would give rise to a reasonable suspicion of discrimination. Accordingly, we find our previous decision did not contain an erroneous interpretation of law or regulation or misapplication of established policy, according to 29 C.F.R. 1613.235(b)(2).

CONCLUSION

After a review of appellant's request to reopen, 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. 1613.235(b), and it is the decision of the Commission to deny the agency's request. The decision of the Commission in EEOC Appeal No. 01871261 (December 24, 1987) which remanded the complaint to the agency for further processing, remains the Commission's final decision in this matter. Neither this denial of the agency's request to reopen nor the previous decision constitute a ruling on the merits of the appellant's complaint. There is no further right of administrative appeal from a decision of the Commission on a request to reopen.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION

You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head may result in the dismissal of your case. Fed. R. Civ. P. 25(d)(2).

APPOINTMENT OF COUNSEL

If you decide to file a civil action and do not have or cannot afford the services of an attorney, under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended, and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791 and Sec. 794c, as amended, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the civil action without payment of fees, costs or security. Your request must be FILED WITH THE COURT WITHIN THIRTY (30) DAYS from the date that you receive the Commission's decision.

FOR THE COMMISSION:

Executive Officer
Executive Secretariat