01985500
11-03-1999
Annie M. Thomas-Burnett, Appellant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Annie M. Thomas-Burnett v. Federal Deposit Insurance Corporation
01985500
November 3, 1999
Annie M. Thomas-Burnett, )
Appellant, )
)
v. ) Appeal No. 01985500
)
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
The Commission finds that the agency's May 29, 1998 final decision
dismissing a portion of appellant's complaint on the grounds of untimely
EEO counselor contact, is proper pursuant to the provisions of 29
C.F.R. �1614.107(b).
The record shows that appellant sought EEO counseling on December 16,
1997, alleging that she had been discriminated against on the bases of
race (Black) and reprisal for prior EEO activity when: (1) on September
25, 1997, she was informed by memorandum entitled "Use of Leave" that
future leave would be recorded as AWOL instead of LWOP, even though such
leave was medically related; and, (2) on December 12, 1997, appellant
was issued a performance appraisal for the period ending September 1997,
that contained an overall rating of "marginal" and placed her on a
Performance Improvement Plan, effective January 8, 1998.
The agency issued a final decision accepting allegation (2) for
investigation. Allegation (1) was dismissed on the basis of untimely EEO
counselor contact after the agency found that appellant had contacted
an EEO counselor well beyond the 45-day time limit provided by EEOC
Regulations.
On appeal, appellant contends that the Commission should waive the
45-day time limit because her untimeliness was related to her "husband's
death and taking care of business that proceeds death. Since the union
represented [her], [she] expected them to follow through with expiring
dates without [her] presence".
EEOC Regulation 29 C.F.R.�1614.605(e) provides that a complainant shall
at all times be responsible for proceeding with the complaint whether
or not he or she has designated a representative. The Commission has
held that where there is an issue of timeliness, the agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness. Williams v. Department of Defense, EEOC
Request No. 05920506 (August 25, 1992). Based on the foregoing, we find
that the arguments raised by appellant on appeal are not sufficient to
toll the 45-day time limit. Accordingly, the agency's decision dismissing
allegation (1) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 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. 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 (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:
11/03/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations