01A02652
07-26-2002
Carmen B. Young, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Carmen B. Young v. Federal Deposit Insurance Corporation
01A02652
07-26-02
.
Carmen B. Young,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A02652
Agency Nos. FDICGC950007, FDICGC960005
DECISION
Complainant filed two complaints, which were consolidated by the agency's
final agency decision dated January 11, 2000. Upon review, the Commission
finds that the agency's decision with regard to complaint (FDICGC950007)
dismissing complainant's complaint due to untimely EEO Counselor contact
is proper pursuant to 29 C.F.R. � 1614.107(a)(2). In his complaint,
complainant alleged that he was discriminated against on the basis of sex
(male) when:
(1) as a result of sexual allegations made against him and alleged
falsification of his SF 171 he was issued a letter of proposed removal on
July 13, 1994. On November 4, 1994, the removal action was mitigated to
a five (5) day suspension and reduction in grade from a GG-09 to a GG-07.
Complainant contacted an EEO Counselor with regard to his complaint
on March 8, 1995, which was beyond the 45-day time limit set by
the regulations. On appeal, complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor. Accordingly, the agency's decision with
respect to this complaint is AFFIRMED.
With respect to complaint (FDICGC960005) complainant alleged reprisal by
his second-line supervisor for lowering his Annual Performance Appraisal
for the period February 11, 1994 to February 10, 1995. The record reveals
that the exact date that complainant received his Annual Performance
Appraisal (APA) is unknown. The FAD maintains however that complainant
was aware of his APA before September 20, 1995, because complainant
acknowledged via email that he and his second-line supervisor had had a
conversation regarding the APA. Complainant maintains that he did not
receive his performance appraisal from his first-line supervisor until
November 27, 1995. Complainant contacted an EEO counselor on December
11, 1995. 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.
Complainant argues that he did not become aware of the agency's official
action until he received a copy of his APA from his first-line supervisor.
Complainant maintains that although he spoke with his second-line
supervisor about his proposed rating on his APA, he did not know if
the supervisor's proposed action would become official. We find that
the agency has not submitted sufficient argument or evidence to refute
complainant's contentions. We note that the supervisor's statement of
a proposed action did not create an actual harm and was insufficient to
render complainant aggrieved. We find that complainant was not aggrieved
until he received an official copy of his APA. Therefore, complainant's
EEO Counselor contact on December 11, 1995, was timely. Accordingly,
the agency decision to dismiss complainant's complaint on the grounds of
untimely EEO contact was improper and is REVERSED. Complainant's complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the
complainant that it has received the remanded allegations within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
__07-26-02________________
Date