Tyrone E. Murray, Sr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980324x (E.E.O.C. Nov. 4, 1999)

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.