01990300_r
12-17-1999
Marvena Murphy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marvena Murphy v. United States Postal Service
01990334
December 17, 1999
Marvena Murphy, )
Complainant, )
)
v. ) Appeal Nos. 01990334
) 01994653
) Agency Nos. 1-K-221-0076-98
William J. Henderson, ) 1-K-221-0027-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On August 23, 1998, complainant filed a formal complaint in Agency
No. 1-K-221-0076-98, alleging discrimination on the bases of race
(African-American), sex (female), and physical disability in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> In her complaint, complainant contended that
the following acts were discriminatory:
On October 18, 1997, complainant's supervisor (S1) made complainant
work outside of her medical restrictions, and struck complainant; and
On October 20, 1997, complainant reported the matter above to management,
but management failed to take action except to send complainant back
to work and to ensure her that the supervisor would not be allowed to
harm her again.
On September 8, 1998, the agency issued a final decision (FAD)
dismissing the complaint for failure to timely contact an EEO Counselor.
Specifically, the agency found that complainant did not raise her claims
with an EEO Counselor until May 12, 1998, seven months after the most
recent incident occurred. Complainant filed a timely appeal (Appeal
No. 01990334) from the FAD, received by the Commission on May 21, 1999,
which is accepted in accordance with EEOC Order 960, as amended.
Meanwhile, complainant filed a separate claim of retaliation on February
23, 1998, Agency No. 1-K-221-0027-99. In this complaint, complainant
alleged that she was subjected to reprisal for her prior EEO activity
when:
On September 9, 1998, the MDO told other employees that complainant is
crazy;
On October 6, 1998, the MDO stood near complainant in the spurs area
and stared at complainant;
On October 14, 1998, S1 stood across from the work area staring at
complainant; and
On November 12, 1998, S1 and the MDO were staring at complainant,
and subsequently, S1 walked into the area where complainant was working.
On April 15, 1999, the agency issued a FAD dismissing Agency
No. 1-K-221-0027-99 for raising the same claim previously raised in
Agency No. 1-K-221-0020-99. Alternatively, the agency found that the
entire complaint should be dismissed for failure to state a claim because
complainant suffered no personal deprivation at the hands of management.
The agency also found that claims (a) - (c) were not timely raised with
an EEO Counselor because complainant failed to contact a counselor until
December 23, 1998.
Complainant received a copy of the FAD for Agency No. 1-K-221-0027-99 on
April 22, 1999. On May 21, 1999, the Commission received complainant's
timely appeal of the FAD (Appeal No. 01994653).
On appeal, complainant argues that due to "circumstances beyond [her]
control," she was unable to contact a counselor sooner regarding her
August 23, 1998 complaint (Appeal No. 01990334). Complainant attached
a letter from her doctor, which states that complainant was suffering
from severe depression, and was treated both in the hospital and as an
out-patient from November 1, 1997 through February 8, 1998. The doctor
claimed that complainant's illness rendered her unable to file an EEO
complaint prior to "mid-May 1998."
In response, the agency notes that complainant submitted a lengthy
hand-written statement on October 20, 1997, concerning the matters raised
in Appeal No. 01990334. The agency further notes that complainant
filed a grievance on the matter in late 1997, and, therefore, she was
not physically unable to contact an EEO Counselor until May 12, 1998.
The record for Appeal No. 01990334 includes a union grievance form,
dated October 28, 1997, which alleges that S1 assaulted complainant.
The record also contains a grievance appeal, dated December 14, 1997,
concerning the same incident.
Complainant argued in Appeal No. 01994653 that the complaint was "a
separate matter" from her prior complaint. Complainant also attached a
bond from the United States District Court for the Eastern District of
Virginia requiring S1to avoid verbal or physical contact with complainant
for six months, "except as required by the conditions of the workplace."
The agency provided no response to this appeal, but included the formal
complaint and FAD for Agency No. 1-K-211-0020-99.<2> In this complaint,
dated February 23, 1999, complainant alleged that on November 12, 1998,
S1 and the MDO stood twelve to fifteen feet away from complainant and
stared at her, causing her to feel frightened. Subsequently, according
to the complaint, complainant heard S1's voice in the area, and realized
that he was walking near her.
ANALYSIS AND FINDINGS
EEOC Regulations grant the Commission discretion to consolidate two or
more complaints of discrimination filed by the same complainant. See 64
Fed. Reg. 37,644, 37,661 (1999) (to be codified at 29 C.F.R. �1614.606).
Consolidation is emphasized under the new regulations, in order to make
better use of Commission and agency resources. See EEOC- Management
Directive (MD) 110, as revised November 9, 1999, at 5-13, 14. Therefore,
the Commission has consolidated Appeal Nos. 01990334 and 01994653 for
decision on appeal.
01990334
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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.
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
is so incapacitated by his condition that she is unable to meet the
regulatory time limits. See Davis v. United States Postal Service, EEOC
Request No. 05980475 (August 6, 1998); Crear v. United States Postal
Service, EEOC Request No. 05920700 (October 29, 1992). The Commission
finds that complainant was not so incapacitated that she could not
contact a counselor in 1997. The letter submitted by the doctor does not
explain complainant's failure to contact a counselor despite her ability
to proceed with a union grievance. Accordingly, complainant's May 12,
1998 contact was untimely, and the agency's dismissal of allegations
(1) and (2) is AFFIRMED.
01994653
EEOC Regulations require the dismissal of complaints that state the
same claim already pending or decided by the agency or Commission.
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29
C.F.R. �1614.107(a)(1)). The Commission has consistently held that
in order for a complaint to be dismissed as identical, the elements of
the complaint must be identical to the elements of the prior complaint
in time, place, incident, and parties. See Jackson v. Department of
the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other
grounds EEOC Request No. 05960524 (April 24, 1997). Incident (6)
from Appeal No. 01994653 clearly is identical to the matters raised in
Agency No. 1-K-221-0020-99. Accordingly, the agency's dismissal of (d)
is AFFIRMED.
The remaining incidents raised in (a), (b), and (c) also were untimely
raised. Complainant contacted a counselor for this complaint on December
23, 1998, more than 45 days after the alleged incidents occurred.
Accordingly, the agency's dismissal of (a), (b), and (c) is AFFIRMED
for untimeliness pursuant to 29 C.F.R. �1614.107(a)(2).
CONCLUSION
Accordingly, the agency's dismissals in Appeal Nos. 01990334 and 01994653
are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 17, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.
2The agency dismissed Agency No. 1-K-221-0020-99 for failure to state
a claim.