01990903
11-23-1999
Carla D. Gallegos, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Carla D. Gallegos, )
Complainant, )
)
v. ) Appeal No. 01990903
) Agency No. FDIC 98-71
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance )
Corporation, )
Agency. )
______________________________)
DECISION
On November 3, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
October 10, 1998, pertaining to 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, as amended, 29 U.S.C. �621 et seq.<1> In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (Hispanic), color (White), sex (female) and age
(DOB 4/12/53) when:
In July 1997, she was advised that her appointment term would be for
one year, and not the two-year appointment for which she had applied; and
In November 1997, she was denied a full relocation package when she
accepted a reassignment from a position in Irvine, California to one
in Hartford, Connecticut.
The agency dismissed complainant's claims for failure to timely contact an
EEO Counselor. Specifically, the agency determined that complainant had
a reasonable suspicion of discrimination regarding the events described
in claims (1) and (2), more than forty-five days prior to her contact
of an EEO Counselor on March 31, 1998.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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.
Based on our review of the record and previous Commission's decisions
on this issue, we hold that complainant's EEO Counselor contact on
March 31, 1998, was untimely. 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. See Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992).
Here, the agency has provided the Commission with several documents from
complainant, including an Attachment to Complaint of Discrimination
indicating that complainant knew in July 1997 that the position she
accepted in Hartford Connecticut was for a term not to exceed one year,
rather than the two year term for which she had originally applied.
Complainant indicates that she informed the agency that she would accept
the position �as posted, subject to relocation benefits.� The Complainant
further indicates that in November 1997, she was first notified of the
agency's denial of her relocation expenses. However, complainant failed
to seek EEO counseling until March 1998, approximately 3 months after
she became aware of the agency's denial of her expenses, and 8 months
after her July 1997 acceptance of the position with an employment term
of one year.
It is the decision of this Commission that complainant reasonably
suspected discrimination concerning claims (1) and (2) more than
forty-five (45) days prior to her contact of an EEO Counselor on March 31,
1998. Complainant has failed to provide persuasive evidence to justify
the extension of the applicable time limit for counselor contact. We find
therefore, that the agency has met its burden concerning the issue of
untimeliness. Accordingly the agency's decision dismissing complainant's
complaint is hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644 37, 659 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,
644, 37,661 (1999)(to be codified at and hereinafter referred to as 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).
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 to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
November 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's' representative
(if applicable), and the agency on:
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.