01982515_01995913_r
08-24-2001
Cynthia A. Murphy, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Cynthia A. Murphy v. Department of the Navy
01982515, 01995913
August 24, 2001
.
Cynthia A. Murphy,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 01982515, 01995913
Agency Nos. 97-00702-001, 97-00702-002
DECISION
Complainant filed timely appeals with this Commission from two agency
decisions dated January 22, 1998, and June 18, 1999, dismissing her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The regulation set forth at 29
C.F.R. � 1614.107(b) provides that where an agency decides that some but
not all of the claims in a complaint should be dismissed, the agency shall
notify the complainant of its determination; however this determination
is not appealable until final action is taken on the remainder of the
complaint. In the present case, the agency procedurally dismissed four
of complainant's five claims and processed the merits of one claim.
Since all the claims raised in the subject complaint are now pending
before the Commission, we will exercise our discretion and consolidate
the claims for further review. See 29 C.F.R. � 1614.606.
In her complaint, complainant claimed that she was subjected to
discrimination on the bases of race (Black), color (brown), and age
(43) when:
Complainant was not selected for a Purchasing Agent position on June
25, 1996;
Complainant was not selected for a Custodial Worker position (NA-1)
on September 17, 1996;
Complainant was not selected for a Recreation Aid on November 5, 1996,
November 14, 1996;
Complainant was not selected for a Bowling Alley Aid on December 10,
1996,
Complainant was not referred for the position of Custodial Worker,
NA-2, on July 17, 1997.
The agency issued a decision on January 22, 1998, dismissing claims (1) -
(4) pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Specifically, the agency stated that
complainant became aware of her non-selections for the above mentioned
positions prior to April 1997, however, noted that she did not contact
an EEO Counselor until July 23, 1997, which is beyond the applicable
limitation period.
On appeal, complainant admits that she became aware of the non-selections
prior to April 1997, and claims that at that time she contacted the
Selecting Official, the Executive Officer, an EEO official, two ombudsman,
and the legal department to complain about the selection process.
Complainant stated that although the Executive Officer said he would
investigate the matter, nothing was done. In addition, complainant
stated that �it wasn't until I was denied the custodial position not
only once but twice that I believed I was being discriminated against.
I had to make sure that what I was about to do had merit.� Complainant
also stated that she delayed proceeding with a complaint due to fear
that her husband would be punished by his command.
On June 18, 1999, the agency issued a final decision with regard to
claim (5) finding no discrimination. In this decision, the agency
also addressed the merits of claim (2), the non-selection for the
Custodial Worker position in 1996, under the continuing violation
theory. Although complainant raised several non-selections between June
1996 and July 1997, the agency found that only the two Custodial Worker
positions can be considered timely under the continuing violation theory.
The agency stated that the Custodial Worker positions were both located
in the Supply Department and noted that the same selecting official was
involved. The agency stated, however, the other positions were located
in a different department, the Morale, Welfare and Recreation Department
(MWR), and the selection decisions for the MWR positions were made by
someone other that the Supply Officer. Thus, the agency concluded that
the MWR non-selections raised separate and distinct actions and therefore
were untimely raised.
With regard to issues (2) and (5), the agency found that complainant
failed to prove discrimination. Specifically, with regard to issue (2),
the agency stated that in applying for the NA-1 position, complainant
used a previous application which had been tailored for a Purchasing
Agent position and did not contain cleaning or custodial experience.
The agency noted that the selectees had significant cleaning/custodial
experience. With regard to the NA-2 position, the selecting official
stated that he did not select complainant in part because he knew that
her husband's transfer was pending and he wanted to avoid going through
the selection process again. In addition, the selecting official stated
that complainant's application for the NA-2 position did not indicate any
custodial experience other than cleaning her own house while the selectee
possessed commercial cleaning experience. The agency noted complainant
failed to rebut the legitimate, nondiscriminatory reasons for its actions.
EEOC Appeal No. 01982515
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review of the record, we find that the agency properly
dismissed claims (1), (3), and (4) for untimely EEO Counselor contact.
The Commission finds that complainant has not established a continuing
violation in the present case. Specifically, the Commission finds that
the acts in the present case are not interrelated by a common nexus, and
therefore, do not constitute a continuing violation. See Howard-Grayson
v. United States Postal Service, EEOC Request No. 05990160 (December
3, 1999).
Additionally, with regard to complainant's claim that she contacted
other officials within the requisite time period, the Commission has
consistently held that internal appeals or informal efforts to challenge
an agency's adverse action do not toll the running of the time limit to
contact an EEO counselor. See Hosford v. Department of Veterans Affairs,
EEOC Request No. 05890038 (June 9, 1989). Therefore, complainant's
informal attempts to resolve her claim do not toll the time limit.
Further, complainant has provided no evidence that she exhibited any
intent to begin the EEO process prior to contacting the EEO Counselor
on July 23, 1997. Thus, we find the agency's dismissal of claims (1),
(3), and (4) was proper.
EEOC Appeal No. 01995913
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the Commission's decision that
the agency's decision finding no discrimination with regard to claims
(2) and (5) was proper because the preponderance of the evidence of
record does not establish that discrimination occurred.
Accordingly, the agency's decisions concerning complainant's complaint
are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 24, 2001
__________________
Date