Murphy v . SSA CV-07-145-PB 02/25/08
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Raymond T . Murphy
Case N o . 07-cv-145-PB
Opinion N o . 2008 DNH 045
John E . Potter, Postmaster General
United States Postal Service
MEMORANDUM AND ORDER
Raymond Murphy filed an administrative complaint of
discrimination against his employer, the United States Postal
Service (“Postal Service”) in 1993. The Postal Service agreed to
a settlement resolving his complaint, but then allegedly failed
to perform its end of the bargain. In this lawsuit, Murphy seeks
specific performance of the original settlement agreement and
also claims that the Postal Service retaliated against him. The
Postal Service has moved for summary judgment. For the reasons
described herein, I grant the Postal Service’s motion for summary
judgment.
I. BACKGROUND
A. 1993 EEO Complaint and Settlement
During a 1992 restructuring of the Postal Service, Murphy
wanted to be promoted to a new District Manager position in
Westchester, New York, but someone else was selected for that
position instead. On February 2 2 , 1993, Murphy responded by
filing an Equal Employment Opportunity (“EEO”) complaint alleging
that the Postal Service’s decision not to promote him constituted
discrimination against him on the basis of his race, color,
religion, sex, and age. On December 2 8 , 1994, Paul Tartaglia
(the Postal Service’s manager of human resources) and Murphy
executed a settlement agreement resolving Murphy’s EEO complaint.
Under the agreement, Murphy was to receive: a promotion to a
District Manager position in Central New Jersey (items 1 - 4 ) ,
specified relocation benefits (item 5 ) , a salary increase
retroactive to October 1993 (item 6 ) , a lump sum payment of
$16,000 “to reflect past relocation benefits inequities” (item
7 ) , and payment of $10,000 to Murphy’s representatives in the
negotiation process (item 8 ) .
From 1995 to 1998, Murphy made repeated, unsuccessful
efforts to obtain final approval of the settlement from the
-2-
Postal Service. On March 7 , 1995, in an internal Postal Service
memo to one of his superiors, M r . Tartaglia represented that he
and Murphy had recently discussed the “reluctance of Headquarters
to approve my agreement with him in settlement of his EEO Case.”
(Murphy, for his part, asserts that no such discussion took
place.)
On April 1 2 , 1995, M r . Tartaglia sent a memo to Murphy
containing two proposed amendments to the original agreement,
both of which related to the retroactive salary increase in item
6. Murphy responded by proposing his own revisions to M r .
Tartaglia on June 1 2 , 1995. On November 2 0 , 1995, having
received no reply to the proposed revisions, Murphy sent, through
counsel, a letter to M r . Tartaglia inquiring about the status of
the matter. On July 2 4 , 1996, Murphy sent, through counsel,
another set of proposed revisions to M r . Tartaglia.
On August 1 7 , 1997, Murphy sent a brief memo directly to M r .
Tartaglia that “attempted to update and summarize the subject
agreement for potential closure.” He stated that although items
1 through 4 (relating to his transfer to a new District Manager
position in New Jersey) had been implemented and some were
“moot,” item 6 was “[n]ever implemented,” item 7 was “never
-3-
effected,” and item 8 was “still an outstanding issue.”
On September 7 , 1998, Murphy communicated to his attorney
that no progress had been made regarding the unfulfilled terms of
the agreement, and that “unless reasonable action is effected, in
say 90 days, we should re-file and also file a reprisal.”1 There
i s , however, no evidence in the record suggesting that Murphy or
his attorney did anything to follow up on this sentiment.
From 1998 to 2000, there do not appear to have been any
communications exchanged between the parties regarding Murphy’s
case other than Murphy’s receipt of two payments: $16,000 in May
of 2000 in satisfaction of term 7 of the agreement, and a $12,000
payment to Murphy’s attorney on an unspecified date in
satisfaction of term 8 of the agreement.
For the next four years, from May 2000 to December 2004,
there is no indication in the record that either Murphy or the
Postal Service communicated further regarding the settlement
agreement.
1
As he explained in the letter, Murphy’s phrase “to file a
reprisal” meant that he intended to file a complaint alleging
that “Nancy George’s action denying me the 1995, 5% merit/bonus”
constituted retaliation against him for alleging discrimination.
-4-
B. 2004 EEO Complaint Seeking to Enforce 1994 Settlement
In 2004, Murphy was assigned to serve as a postal advisor to
the Coalition Provisional Authority in Iraq. On December 15 of
that year, apparently after his return from Iraq, Murphy
announced his retirement from the Postal Service.
Simultaneously, Murphy filed a complaint with the EEO Compliance
and Appeals Manager alleging that the Postal Service had breached
the December 1994 settlement agreement.
Meanwhile, in January 2005, Murphy attempted to revive the
negotiations over amending the settlement agreement (by then over
a decade old) via e-mail. In reply, the Postal Service stated
its willingness to “implement the agreement you signed on
December 2 5 , 1994.” The Postal Service also asserted that it had
“already complied with several points in this agreement.”
On July 1 8 , 2005, the Postal Service denied Murphy’s 2004
EEO claim on the ground of untimeliness, stating that Murphy
“knew or should have known of the agency’s alleged noncompliance
but instead waited until your imminent retirement to allege
breach of settlement.”
Murphy appealed that decision to the Equal Employment
Opportunity Commission (EEOC). On August 2 1 , 2006, the EEOC
-5-
denied his appeal. The EEOC found that Murphy’s allegation of
breach was untimely and that his claim was barred by laches
because of his failure to act with due diligence in pursuing his
claim.
C. 2005 EEO Complaint with Retaliation and Other Claims
On July 2 3 , 2005 (four days after the Postal Service’s
denial of his 2004 EEO complaint), Murphy filed a second EEO
complaint alleging religious discrimination, age discrimination,
and retaliation for his 1993 EEO claim.
On September 2 , 2005, the Postal Service denied Murphy’s
second EEO complaint because his claims were both untimely and
barred by laches.
Murphy appealed that decision to the EEOC. On January 2 3 ,
2007, the EEOC denied his appeal because his claims were
untimely, barred by laches, or reflected nothing more than
dissatisfaction with the processing of a previously-filed
complaint.
On March 2 2 , 2007, the EEOC denied reconsideration of its
decision.
D. The Instant Suit
On May 1 5 , 2007, Murphy filed a pro se complaint in this
-6-
court, seeking specific performance of the 1994 settlement
agreement, or unspecified equitable remedies “that would produce
a similar result.” Additionally, Murphy seeks relief for various
retaliation claims spanning the twelve-year period from the
filing of his original EEO complaint in 1993 to his retirement
announcement in 2005.
II. STANDARD OF REVIEW
The Postal Service has filed a Motion to Dismiss And/Or For
Summary Judgment, which I treat as a motion for summary judgment.
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). A party seeking summary judgment must
first identify the absence of a genuine issue of material fact.
Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). Once the
moving party has properly supported her motion for summary
judgment, the burden shifts to the nonmoving party, with respect
to each issue on which he has the burden of proof, to demonstrate
that a trier of fact reasonably could find in his favor.
-7-
DeNovellis v . Shalala, 124 F.3d 2 9 8 , 306 (1st Cir. 1997); see
Celotex,
477 U.S. at 323. “At this stage, the nonmoving party
‘may not rest upon mere allegation or denials of [the movant’s]
pleading, but must set forth specific facts showing that there is
a genuine issue’ of material fact as to each issue upon which he
would bear the ultimate burden of proof at trial.” DeNovellis,
124 F.3d at 306 (quoting Anderson v . Liberty Lobby, Inc.,
477
U.S. 2 4 2 , 256 (1986)). The test is whether there is “sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party. If the evidence is merely colorable or
is not significantly probative, summary judgment may be granted.”
Id. (quoting Anderson,
477 U.S. at 249-50
III. ANALYSIS
Murphy seeks specific performance of the 1994 settlement
agreement and, separately, seeks relief for actions that the
Postal Service allegedly took in retaliation for his
discrimination claims. I discuss these two claims in turn.
A. Specific Performance of 1994 Settlement Agreement
Murphy’s claims arise under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age
-8-
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621
seq. I assume without deciding that Murphy may file an action in
federal district court to enforce a breached Title VII/ADEA
settlement agreement, rather than relying exclusively on
administrative remedies. See Owens v . West,
182 F. Supp. 2d 1 8 0 ,
188 (D. Mass. 2001) (“Title VII’s emphasis on voluntary
compliance would be compromised if federal courts were found to
lack jurisdiction to enforce agreements of this sort”). Even s o ,
Murphy’s failure to meet relevant administrative deadlines bars
his action for specific performance. Murphy missed two
deadlines, either one of which can independently justify
dismissal: (1) his 2004 EEO complaint missed, by several years,
the thirty-day deadline for complaining of a breached settlement
agreement; and (2) his 2007 complaint in this court missed, by
several months, the ninety-day deadline for appealing the August
2 1 , 2006, denial of his 2004 EEO complaint.
1. Failure to Timely File 2004 EEO Complaint
I f , after reaching a settlement agreement of his Title VII
or ADEA claims, a federal employee believes that the employing
agency has breached that agreement, he must follow the procedure
set out in 29 C.F.R. § 1614.504
-9-
If the complainant believes that the agency has failed
to comply with the terms of a settlement agreement or
decision, the complainant shall notify the EEO
Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should
have known of the alleged noncompliance. The
complainant may request that the terms of settlement
agreement be specifically implemented o r ,
alternatively, that the complaint be reinstated for
further processing from the point processing ceased.
29 C.F.R. § 1614.504(a)
Murphy failed to comply with this requirement, missing the
deadline not by days or months, but by years. As early as 1995,
Murphy clearly knew that the Postal Service was reluctant to
comply with the agreed-upon terms of the settlement, as evidenced
by his decision to retain counsel and the conduct of counsel
(including a November 2 0 , 1995, letter to Paul Tartaglia
expressing doubt about whether “the original settlement is still
in effect”). Additionally, Murphy’s August 1 7 , 1997, letter to
his attorney specifically noted that the retroactive salary
increase was “never implemented,” the $16,000 lump sum payment
was “never effected,” and the payment to his attorney was “still
an outstanding issue.” In other words, he was aware that the
Postal Service had only partially performed its end of the
bargain. Indeed, by September 7 , 1998, Murphy was frustrated
enough that he suggested that if no progress was made in the next
-10-
ninety days, he intended to “re-file and also file a reprisal.”
This shows that Murphy was not only aware of the Postal Service’s
noncompliance, but felt that it was serious enough to justify a
further EEO complaint. It could be argued that the statute of
limitations began running at this point. Even assuming that it
did not, however, Murphy’s inaction from 2000 to 2004
extinguished whatever rights remained.
By May of 2000, the Postal Service had given Murphy the
$16,000 lump sum payment and paid $12,000 to Murphy’s attorney.
All that remained to be implemented was the retroactive salary
increase. Yet the Postal Service did not perform this final
term, and Murphy neither insisted that they perform nor did he
file any EEO complaints of noncompliance.
It was not until four years of silence and continued non-
performance had elapsed that Murphy chose, on December 1 5 , 2004,
to alert the EEO officer to the Postal Service’s noncompliance.
Thus, even giving Murphy the benefit of all reasonable inferences
in his favor, the thirty-day deadline set by 29 C.F.R. §
1614.504(a) had long since elapsed by the time Murphy filed his
2004 EEO complaint.
-11-
There is no basis in equity to excuse that delay. The
Postal Service properly raised laches as a defense to Murphy’s
2004 EEO complaint, both internally and before the EEOC.
Additionally, Murphy has offered no evidence suggesting that it
would be appropriate to equitably toll the running of the
deadline. Accordingly, Murphy’s unexplained failure to seek
specific performance of his settlement agreement for more than
four years extinguished his right to seek specific performance of
the alleged settlement agreement.
2. Lawsuit Not Filed Within Ninety Days of Final
Administrative Action
Even if Murphy’s multi-year delay in filing his 2004 EEO
complaint was excusable, his present effort to compel specific
performance would still fail because Murphy missed the deadline
for challenging the EEOC’s final rejection of his 2004 EEO
complaint. Under 42 U.S.C. § 2000-e16(c), an aggrieved federal
employee may file a civil action “[w]ithin 90 days of receipt of
notice of final action taken by . . . the Equal Employment
Opportunity Commission.” This ninety-day statute of limitations
applies equally to Title VII claims and ADEA claims, if -- as
here -- the ADEA claims were first raised in an administrative
proceeding. See Rossiter v . Potter,
357 F.3d 2 6 , 30 (1st Cir.
-12-
2004); Lavery v . Marsh, 918 F.2d 1022, 1028 (1st Cir. 1990). In
Murphy’s case, the ninety-day statute of limitations began
running when he received the EEOC’s August 2 1 , 2006, rejection of
his 2004 EEO complaint. Accordingly, he had until November 1 9 ,
2006, plus the time necessary for service by mail of the EEOC
decision, to file the instant lawsuit in federal district court.
See Hill v . Textron Auto Interiors, Inc.,
160 F. Supp. 2d 179,
183 (D.N.H. 2001) (“In the absence of evidence to the contrary,
courts will presume that a plaintiff received his or her
right-to-sue letter three days after the EEOC mailed i t ” ) .
Instead, however, Murphy waited until May 1 5 , 2007, to do s o .
That filing was about six months too late.
The fact that Murphy included some of the same claims in his
subsequent 2005 EEO complaint, which did not reach a final
resolution until March 2007, did not toll the running of this
statute of limitations. Brown v . Unified Sch. Dist. 5 0 1 , 465
F.3d 1184, 1186 (10th Cir. 2006) (“If the claimant fails to file
suit within the ninety-day window, the lapsed claims are not
revived by including them in a second EEOC charge and restarting
the process”); Spears v . M o . Dep’t of Corr. & Human Res.,
210
F.3d 8 5 0 , 853 (8th Cir. 2000) Soso Liang Lo v . Pan American
-13-
World Airways, Inc., 787 F.2d 8 2 7 , 828 (2d Cir. 1986) (“We hold
that whether the present action is time barred must be determined
with reference to only the first Notice of Right to Sue.
Otherwise, the time limitations . . . would be meaningless,
because potential Title VII plaintiffs could evade those
requirements simply by seeking additional Notices of Right to Sue
whenever they pleased.”).
Murphy argues that the “ongoing” nature of the prior
settlement negotiations tolled the statute of limitations. This
argument is meritless. First, occasional disputes over the
performance of a settlement whose terms were agreed upon some
twelve years earlier cannot fairly be characterized as ongoing
settlement negotiations.2 Second, even if I accepted, arguendo,
Murphy’s contention that the settlement negotiations were in some
sense ongoing, that does not give rise to the kind of grave
injustice that would justify equitable tolling. See Chico-Velez
v . Roche Prods., Inc., 139 F.3d 5 6 , 59 (1st Cir. 1998)
(“[E]quitable tolling is reserved for exceptional cases and the
record before us simply lacks the ingredients necessary to
2
Indeed, the record contains no suggestion that the Postal
Service was even discussing the topic with Murphy between August
2 1 , 2006, and May 1 5 , 2007.
-14-
warrant invocation of the doctrine”).
Accordingly, Murphy failed to meet the ninety-day deadline
for challenging the EEOC’s August 2 1 , 2006, decision in federal
district court, and the complaint must be dismissed.
B. Murphy’s Allegations of Retaliation
In his 2005 EEO complaint, Murphy alleged that he suffered
retaliation for his prior religious discrimination and age
discrimination claims from August 1994 to August 2004. 3 I
analyze these allegations first as allegations of retaliation for
claiming religious discrimination (Title VII) and next as
allegations of retaliation for claiming age discrimination
(ADEA).
3
In his administrative proceedings and in his complaint in
this court, Murphy alleges that he was retaliated against in that
h e : (1) did not receive settlement funds, including the $16,000
he received in May 2000, in a timely manner; (2) did not receive
a merit award in 1994; (3) received a Northeast Area Economic
Value Added (“EVA”) award instead of a New York Metro Area EVA
award in 1995; (4) did not receive a proper pay increase when
promoted to the position of Manager, Operation Support, in 1997;
(5) experienced a breach of privacy by an EEO counselor in 1995;
and (6) received a reduced incentive payment for his postal
position in Iraq in August 2004. Additionally, Murphy’s
complaint adds a new allegation that, on an unspecified date, the
Deputy Postmaster General engaged in retaliation by reviewing
Murphy’s travel expenses.
-15-
1. Title VII Retaliation Claims
To the extent that Murphy asserts Title VII retaliation
claims, his claims are barred by his failure to seek timely EEO
counseling.
EEOC regulations require an aggrieved person to “initiate
contact with a[n] [EEO] Counselor within 45 days of the date of
the matter alleged to be discriminatory o r , in the case of
personnel action, within 45 days of the effective date of the
action.” 29 C.F.R. § 1614.105(a)(1). According to the record
before m e , Murphy did not seek EEO counseling until December 1 5 ,
2004, which was not within forty-five days of any of the
retaliatory acts he alleged in his 2005 EEO complaint. As for
Murphy’s new and undated allegation that the Deputy Postmaster
General engaged in retaliation by reviewing Murphy’s travel
expenses, there is no evidence that he ever sought EEO counseling
regarding this issue.
Thus, as to both his new and old allegations of retaliation,
Murphy has failed to show that he sought EEO counseling within
the requisite forty-five days. Additionally, there is no basis
for equitable tolling of the forty-five-day deadline. Murphy
blames at least some of his tardiness on “Tartaglia postal
-16-
related” delays, but this allegation is so vague and undeveloped
that it cannot justify any tolling. See, e.g., Bonilla v .
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 279 (1st Cir. 1999)
(denying equitable tolling where the employee “has advanced no
developed argumentation in support of her claim” and “her
complaint does not allege any facts that remotely suggest a
plausible basis for such relief”).
Accordingly, to the extent that Murphy asserts he was
retaliated against in violation of Title V I I , his failure to meet
the relevant deadlines forces the dismissal of those claims.
2. ADEA Retaliation Claims
Murphy’s ADEA retaliation claims are defective because (1)
there is no retaliation cause of action under the ADEA, and (2)
even if a retaliation cause of action did exist, it would be
time-barred. Under First Circuit case law, the ADEA does not
provide a cause of action for retaliation by federal employers.
Gomez-Perez v . Potter, 476 F.3d 5 4 , 60 (1st Cir. 2007)
(“Congress did not intend for 29 U.S.C. § 633a to include a cause
of action for retaliation as the result of having filed an age-
discrimination related complaint”), cert. granted, 128 S . C t . 29
(U.S. Sept. 2 5 , 2007). Even if such a cause of action did exist,
-17-
however, it would be barred by Murphy’s failure to timely seek
EEO counseling or to file notice of his intent to sue within 180
days of the alleged acts of retaliation.
As to EEO counseling, Murphy’s ADEA retaliation claims are
governed by the same deadlines as his Title VII retaliation
claims. Lavery, 918 F.2d at 1027. His ADEA retaliation claims
are thus time-barred for the same reasons as his Title VII
retaliation claims, discussed earlier.
A federal employee claiming age discrimination has the
additional option, not available to Title VII claimants, of
bypassing the administrative process and filing suit directly in
federal court. Jorge v . Rumsfeld, 404 F.3d 556, 561 (1st Cir.
2005). By statute, however, a federal employee who wishes to
avail himself of this bypass option must notify the EEOC of his
intent to sue within 180 days following the occurrence of the
allegedly unlawful practice.
Id. at 561; see 29 U.S.C. §
633a(d). In this case, Murphy never filed a notice of intent to
sue. Thus, he did not fulfill the requirements for exercising
the bypass option.
Accordingly, to the extent that Murphy asserts he was
retaliated against for alleging age discrimination, the statute
-18-
offers no remedy; alternatively, his failure to meet the relevant
deadlines forces the dismissal of those claims.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment (Doc. N o . 8 ) is granted. The clerk is directed to enter
judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
February 2 5 , 2008
cc: Raymond T . Murphy, pro se
Seth R. Aframe, Esq.
-19-
