05980324x
11-04-1999
Tyrone E. Murray, Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tyrone E. Murray, Sr., )
Appellant, )
) Request No. 05980324
v. ) Appeal No. 01964578
) Agency No. 1-D-211-1056-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On February 5, 1998, Tyrone E. Murray, Sr. (appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Tyrone E. Murray, Sr. v. United States Postal
Service, EEOC Appeal No. 01964578 (January 27, 1998). 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); or the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth below, appellant's request is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision dismissing a portion of appellant's complaint
as untimely.
BACKGROUND
Appellant filed an EEO complaint on March 19, 1996, alleging that he
had been discriminated against on the bases of physical disability
(shoulder injury) and reprisal (prior EEO activity) when:
From October 1994 to February 25, 1995, appellant was menaced at work;
On February 25, 1995, and March 1, 1995, appellant was stalked by
a co-worker;
On March 2-3, 1995, appellant's character was defamed when falsities
were communicated to Postal Inspectors;
In May 1995, Postal Inspectors impeded appellant's First Amendment rights
when they conducted surveillance outside of the work place;
On June 20, 1995, appellant filed a CA-2 (form for Notice of Occupational
Disease and Claim for Compensation) which the agency took four months
to process;
On August 7, 1995, appellant learned that the agency had not completed
its portion of the CA-2;
On August 20, 1995, documents mailed to the Motor Vehicle Administration
(MVA) were tampered with by the Postal Service;
On November 17, 1995, appellant received confirmation from the Office of
Workers Compensation Programs (OWCP) that his CA-2 form was not processed
pursuant to 20 C.F.R. �10.102;
By December 15, 1995, mail which appellant sent to the Employees'
Compensation Appeals Board (ECAB), the appellate forum for OWCP claims,
was tampered with and documents were removed;
On December 27, 1995, appellant received an Absence Inquiry Letter
(AIL); and
On January 11, 1996, appellant received a second AIL.
In the Final Agency Decision (FAD), the agency found that appellant
contacted an EEO Counselor on January 8, 1996, and therefore dismissed
allegations (1)-(8) for untimely EEO Counselor contact. The FAD also
dismissed allegation (9) for failure to state a claim. Finally, the
FAD accepted allegations (10)-(11) for investigation. The previous
decision affirmed the FAD, finding that appellant failed to contact an
EEO Counselor in a timely manner regarding allegations (1)-(9).
In his Request to Reconsider (RTR), appellant argued that his allegations
should have been considered timely under a continuing violation theory.
He states that he contacted the EEO Counselor in a timely manner with
regard to allegations (9)-(11). He further argues that allegations
(1)-(8) are related to the timely allegations and, therefore, should be
accepted for investigation.
ANALYSIS AND FINDINGS
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). An RTR is not merely a form of a second appeal.
Regensberg v. U.S. Postal Service, 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. U.S. Postal Service, EEOC
Request No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds that
appellant's RTR meets the regulatory criteria of 29 C.F.R. �1614.407(c).
The previous decision found that appellant failed to contact an EEO
Counselor in a timely manner with regard to allegation (9). Appellant
contacted the EEO Counselor on January 4, 1996, within the forty-five
(45) day time limit. Therefore, we find that the previous decision
erroneously dismissed this allegation for failure to contact an EEO
Counselor in a timely manner.
In its FAD, the agency dismissed allegation (9) for failure to state
a claim. The Commission's regulations require an agency to cancel a
complaint that fails to state a claim where an employee is not aggrieved.
See 29 C.F.R. �1614.107(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). In allegation (9),
appellant alleges that he was discriminated when his mail to ECAB was
tampered with and the documents were removed by the Postal Inspection
Service.<1> The Commission finds that appellant has raised a claim which
is a collateral attack on the OWCP process. See Hogan v. Department of
the Army, EEOC Request No. 05940407 (September 29, 1994) (finding that
appellant's allegations constituted a collateral attack on the OWCP
process and that such an allegation is not allowed except in limited
circumstances). The EEO process is not a mechanism to make such an
attack; this issue therefore is not appealable to the Commission. Id.;
see also Ellis v. United States Postal Service, EEOC Request No. 05920011
(March 12, 1992). Therefore, we find that the FAD properly dismissed
allegation (9) for failure to state a claim and is AFFIRMED.
With regard to the previous decision to dismiss allegations (1)-(8), EEOC
Regulation 29 C.F.R. �1614.107(b) states that the agency shall dismiss
a complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in �1614.105, �1614.106 and �1614.204(c),
unless the agency extends the time limits in accordance with �1614.604(c).
The Commission has adopted a �reasonable suspicion� standard, as opposed
to a �supportive facts� standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
In the case at hand, appellant argues that his allegations constituted
a continuing violation, and that the time limitation period should be
waived. The Commission finds that the previous decision correctly found
that appellant failed to establish a continuing violation in this case.
The Commission has held that the time requirement for contacting an EEO
Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the applicable
time period. See McGivern v. United States Postal Service, EEOC Request
No. 0591150 (December 28, 1990). In order to establish a continuing
violation, a complainant must show that the alleged discriminatory actions
are sufficiently interrelated, and not merely isolated instances. Id.
Furthermore, it is important, in determining whether a claim for a
continuing violation is stated, to consider whether an appellant had prior
knowledge or suspicion of discrimination and the effect of this knowledge.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 369 (1st Cir. 1990) (plaintiff who believed that he had been
subjected to discrimination had an obligation to file promptly with
the Commission or lose his claim, as distinguished from the situation
where a plaintiff is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive the overall discriminatory pattern).
In his RTR, appellant states that he threatened his supervisor with
an EEO complaint after an incident with his supervisor set forth in
allegation (3). This threat of an EEO complaint demonstrates that
appellant believed that he had been subjected to discrimination and,
therefore, his argument to establish a continuing violation fails the
Sabree test. Accordingly, the Commission finds that appellant fails
to establish a continuing violation and that the agency's decision to
dismiss allegations (1)-(8) for untimeliness was proper, and is AFFIRMED.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request satisfies the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to grant the request. The previous
decision is MODIFIED as set forth above, and as modified is AFFIRMED.
There is no further right of administrative appeal from a decision of
the Commission on a 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:
Nov. 4, 1999
DATE Frances M. Hart
Executive Officer
1 Appellant states that the documents within the mailing were in
support of his OWCP appeal to ECAB.