Jacqueline Taylor, Complainant,v.Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionNov 16, 1999
01980660 (E.E.O.C. Nov. 16, 1999)

01980660

11-16-1999

Jacqueline Taylor, Complainant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.


Jacqueline Taylor, )

Complainant, )

)

)

v. ) Appeal No. 01980660

) Agency Nos. RTC 92-24; 92-26; 93-14 & 94-31

) Hearing Nos. 320-96-8156X; 320-96-8159X;

Donna A. Tanoue, ) 320-97-8192X & 320-97-8197X

Chairperson, )

Federal Deposit Insurance )

Corporation, )

Agency. )

______________________________)

DECISION

On October 24, 1997, complainant appealed a final agency decision dated

October 3, 1997, which concluded that she had not been discriminated

against in violation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. �2000e et seq.<1> In her complaints, complainant

alleged discrimination based on sex (female) and in reprisal for prior

EEO activity concerning her job assignments, working conditions, and

her nonselection to several legal positions within the Resolution Trust

Corporation (RTC)<2> which occurred from 1992 to 1994.<3> This appeal

is accepted in accordance with the provisions of EEOC Order No. 960.001.

The record indicates that complainant began her employment with RTC in

1991, as a Professional Liability Section (PLS) Chief, GG-15. During her

tenure, complainant raised the security issue that her office was being

broken into and used by others. In May 1992, a reorganization of PLS

took place and three PLS office/manager positions were consolidated into

one PLS office/manager position within RTC. On or about May 7, 1992,

complainant was informed by an Assistant General Counsel (AGC) that she

was going to be �put-back� to FDIC, and she would be moved to another

building and would work in a special project unit doing �undecided� work.

On May 22, 1992, complainant contacted an EEO Counselor regarding

the matters. The record indicates that a number of other individuals,

four females and four males, including complainant's former supervisor,

were also selected for �put-back.� Prior to �put-back,� complainant

received all RTC mail unopened. From May 7, 1992 until mid-June, no

mail was delivered to complainant.

In June 1992, a female employee replaced AGC as Assistant Regional

Counsel (ARC), E-2. During the relevant time, a male employee was moved

from Phoenix and was placed as a PLS Section Chief, thereby assuming

complainant's former duties. During this time, complainant began

receiving all of her mail opened including her �EEO mail.� Complainant

spoke to supervisory officials about the mail issue, and she was,

thereafter, notified by a PLS secretary, her former secretary while she

was the PLS Section Chief, that her �EEO mail� which consisted of a notice

of final interview had been opened and was in the new Chief's basket.

On or about June 1, 1992, a newsletter was circulated to the legal

department indicating the department's low morale. During this time,

complainant was also plagued by telephone problems in her work area, i.e.,

the telephone did not properly function and/or �roll over� properly.

Thereafter, the PLS secretary told complainant that she was being

transferred due to her previous work with complainant and her delivery

of information concerning the mail issue, described above. The PLS

secretary resigned in lieu of being transferred.

On or about July 22, 1992, �put-back� to FDIC was rescinded, and all

�put-backs� were returned to the Denver office, except complainant and

her former supervisor. Complainant was, thereafter, informed that she

would be transferred to Kansas to the position of PLS staff attorney.

On or about August 11, 1992, complainant and the former supervisor, upon

the agency's request, testified before the Senate Banking Committee.

During the testimony, complainant criticized the reorganization of

the PLS department and the fact that she and other employees filed EEO

complaints and grievances concerning its improprieties and the opening

of personal and confidential mail. After complainant returned from

testifying, her Kansas reassignment, which was previously extended until

three days after her return, was indefinitely postponed, and she and the

former supervisor were the only �put-back� employees left in the special

project unit without any staff support nor any secretarial help and were

completely cut off from the legal department.

On August 17, 1992, while complainant and the former supervisor were

visiting the legal department to turn in travel documents relating to

their trip to D.C. to testify, the Litigation Senior Counsel (LSC), E-1,

told them that they must call him and get his permission before they

could come to the legal department and that they allow him to inspect any

documents they planned to remove from the legal department. On or about

August 31, 1992, LSC sent an E-mail to a high level agency official, with

a copy to ARC expressing his frustration with various claims raised by

complainant and stating that he and the Chief wanted to have complainant

and complainant's former supervisor transferred to another office or

terminated from employment, or provided positions in the Denver office,

but if provided positions in the Denver office, the Chief's request was

to be transferred to another office in another part of the country.

On or about August 18, 1992, four Section Chief positions,

GG/LG-905-14/14, were advertized under vacancy announcement number

RTC-2-116. Complainant applied for the four positions. On or about

October 7, 1992, a Department Head (DH), GG-14, and a Senior Attorney

(SA), GG-14, went to lunch with complainant. After the lunch, DH was

approached by LSC asking him about his �loyalty to legal.� A few days

later, AGC expressed with DH his concerns about the lunch incident.

On October 19, 1992, DH inquired his supervisor about the matter and

was advised that he could have lunch with whomever he wanted and was

told to talk to the Chief. The Chief told DH that he could not be

trusted and he had �lain with dogs and now had fleas,� and that he had

�broken bread with the enemy.� SA was told by a RTC Legal Division

employee that LSC referred to her as the �bitch that was fraternizing

with the enemy.� Complainant and the former supervisor both objected

to this type of behavior on the part of RTC officials. DH also raised

his concerns about the incident to a Vice President (VP). On or about

November 30, 1992, ARC, DH's supervisor, and VP had a meeting, and during

the meeting ARC made a comment that �both LSC and the Chief were taking

the claims of [complainant] hard.� Thereafter, ARC had a meeting with

LSC and the Chief, and after the meeting, she defended their actions.

VP, defending complainant, asked ARC to document the subject meeting

and ARC complained about his involvement in the matter. Thereafter,

VP was told by his supervisor that he was �in trouble.�

During this relevant time period, complainant was interviewed for the

four Section Chief positions. The interviews were conducted by ARC,

LSC, and a male employee, a GG-15 Counsel. All other candidates for the

same positions were interviewed by ARC, LSC, a Litigation Senior Counsel,

and two Section Chiefs. On or about December 11, 1992, ARC selected one

female and three males for the positions. Complainant was not selected

for any of the positions.

In February 1993, a SWAT Senior Counsel position was advertised under

vacancy announcement number RTC-2-ER14. Complainant applied and was

interviewed by ARC and a Senior Counsel, but was not selected for the

position. ARC selected a male for the position.

During this relevant time period, complainant was not assigned to the

Litigation Review Team (LRT), instead a male Counsel was given the LRT

assignment. In June 1993, when complainant asked ARC about her repeated

failure to promote her, ARC asserted that she would not feel comfortable

with complainant reporting to her since �she felt they did not trust

each other.� On or about July 15, 1993, complainant requested to be

placed in a leave without pay status for 45 days based upon the advice

of her EAR counselor due to the stress caused by her working conditions.

On or about September 9, 1993, a PLS Section Chief position became

vacant as the Chief was reassigned to the Washington D.C. RTC office.

Complainant applied for this position, but the roster was, however,

allowed to lapse. Instead of re-announcing the position in a competitive

manner, the male Counsel, who had previously been assigned to LRT,

described above, was placed into the position as an Acting PLS Section

Chief.

Thereafter, a Senior Counsel (Asset Disposition) position was advertised

under vacancy announcement number RTC-93-ER17. Complainant applied,

but was not selected for the position. A male employee was selected

for the position.

On or about September 23, 1993, complainant again testified before the

Senate Banking Committee. During her testimony, complainant asserted

that she and the former supervisor were the victims of a pattern of

retaliation.

In 1994, a Counsel/Section Chief, Corporate Affairs position was

advertised under vacancy announcement number RTC-3B157A. Complainant

applied for the position, but ARC allowed the roster to lapse and,

thereafter, placed a female employee into the position by way of lateral

transfer.

In March 1994, complainant and the former supervisor were approached by a

local weekly newspaper concerning the Whitewater investigation. During

the interview, complainant expressed her concerns about management's

retaliatory actions toward them due to their testimony before the Senate

Banking Committee. On or about March 29, 1994, complainant received a

memorandum from a General Counsel criticizing her for the comments she

made to the newspaper regarding RTC official business. In the memorandum,

the General Counsel indicated that it was not a disciplinary action

or reprimand. Thereafter, complainant accepted a �buy-out� and left

the agency.

The record indicates that on July 6, 1992, August 3, 1992, February

16, 1993, and June 30, 1994, complainant filed four formal complaints

with the agency. Therein, complainant alleged that the agency had

discriminated against her as referenced above. The agency accepted

the complaints and conducted investigations. At the conclusion of the

investigations, complainant requested an administrative hearing before

an Equal Employment Opportunity Commission (EEOC) Administrative Judge

(AJ). The complaints were consolidated for a single hearing.

On July 3, 1997, following a hearing at which seventeen (17) witnesses

testified, the AJ issued a decision concluding that the evidence of record

supported a finding that complainant had been discriminated against based

on her sex and in reprisal for prior EEO activity.<4> With regard to

complainant's removal from her PLS Section Chief position and placed into

�put-back� to the FDIC, the agency articulated reasons for selecting the

male employee as PLS Section Chief in that that employee was the better

manager of the others, he exhibited good skills, and he had done good

work. The agency also indicated that its selection decision was based

on that employee's experience, maturity, and judgement. The AJ found,

however, that the agency's articulated reasons were vague and general

which established pretext. Thus, the AJ concluded that complainant

has established that she was discriminated against on the basis of sex

concerning the �put-back.� The AJ also found sex discrimination with

regard to the subsidiary issues related to the �put-back,� including

relieving complainant from duties and requiring her to perform make work,

not providing permanent office space, labeling her as �hysterical and

paranoid,� ostracizing her during a business trip, and referring to

women as �cunts� by AGC.

With regard to the incidents of searching complainant's desk, questioning

her about her professionalism, harassing her subordinates, the newsletter,

and the March 29, 1994 memorandum, the AJ found that complainant failed

to establish discrimination based on sex and/or in reprisal for prior

EEO activity since she pointed to no similarly situated employees who

were allegedly treated differently than her and/or since she failed to

allege facts sufficient to establish that she suffered any adverse action.

With regard to the office mail issue, the AJ found that the agency's

policy for the opening of all employees mail, which included mail which

was related to and/or sent from the EEO office, had a chilling effect

which impacted the EEO process constituting a per se violation of the

Commission's interpretation of its regulations as they related to privacy

and the free exercise of complainant's rights under the EEO process.

With regard to the four Section Chief selections, the AJ found that

the selection process had �procedural irregularity� without any legally

sufficient explanation in that complainant was the only interviewee who

was interviewed by the GG-15 Counsel. The AJ noted that this deviation

from normal interview procedures was significant because �consensus�

among interviewers was required in deciding selectees, and that Counsel

had no knowledge of the interview of other candidates. The AJ further

noted another �procedural irregularity� in that it was possible that

the Counsel did not even read one of the selectees' SF-171 at the time

of the selection. In addition, the AJ found that the testimony of ARC,

the selecting official, referenced the hostility toward complainant that

the record established existed at the time of the selection due to her

EEO activity, i.e., filing an EEO complaint concerning �put-back,� and

this referenced hostility existed in members of the interview panel,

thus, tainting the entire selection process for the four Section Chief

positions. Based on the foregoing, the AJ concluded that complainant

established, by a preponderance of the evidence, that she had been

discriminated against in reprisal for her prior EEO activity, but not

based on sex.

With regard to the SWAT Senior Counsel selection, the AJ noted that ARC's

interview notes included a reference about complainant indicating that she

was not a good people person and that she alienated people. This, noted

the AJ, contradicted ARC's testimony in the hearing in that she testified

that complainant was not one of those people who did not interact much

with people in the office. In addition, the AJ noted that an analysis

of ARC's notes revealed that when complainant brought up the issue of

her EEO complaint, ARC cryptically referenced the word �trust.� The AJ

found that a reasonable inference to be drawn from this evidence was that

ARC had a problem �trusting� complainant because she filed an EEO; thus,

�trust� under these circumstances was merely a euphemism for retaliation.

Based on the foregoing, the AJ concluded that ARC's articulated reason

for not selecting complainant for the position was not credible and it

was pretext for discrimination which was motivated by retaliation of

complainant's prior EEO activity, but not by her sex.

With regard to the LRT assignment, the AJ found that the agency failed

to articulate a legitimate non-discriminatory reason for selecting the

male Counsel, instead of complainant, since there was no indication as to

why that Counsel was selected. Thus, the AJ concluded that complainant

had been discriminated against based on sex and in reprisal for prior

EEO activity with regard to this issue.

With regard to the PLS Section Chief selection, the AJ noted that

complainant applied for the position after it was announced, but the

vacancy announcement was allowed to lapse, and the GG-15 Counsel was

placed into the position as Acting Section Chief. The AJ found that

a reasonable inference to be drawn from the evidence was that if the

vacancy announcement were to have run its course, complainant would have

been one of the most qualified, since she had served in that position

and received an outstanding evaluation. The AJ also found that the

selection process was manipulated to exclude complainant from competition

for the position, and this, in and of itself, was indicative of pretext.

In addition, the AJ found that there were other evidence of pretext in

that complainant's previous service in the position and her receipt of

an outstanding evaluation for her work in the position were indicative

that her experience was �plainly superior� to that of the Counsel,

who had no PLS Section Chief experience. With regard to ARC assertion

that the Counsel was available on a short notice, the AJ found that

the record revealed that not only was complainant available, but there

was no evidence that ARC even attempted to ascertain her availability.

Based on the foregoing, the AJ concluded that complainant had been

discriminated against in reprisal for prior EEO activity.

With regard to the Senior Counsel (Asset Disposition) selection, ARC

indicated that her decision to select the male employee for the position

was based on his ability to cope with significant change, especially,

downsizing RTC. ARC also indicated that she did not select complainant

because she had not held a management position at RTC for a very long

tenure. The AJ found, however, ARC's articulated reasons pretextual.

Specifically, the AJ found that a reasonable inference to be drawn from

the evidence of record was that complainant was penalized for her reaction

to the reorganization of PLS, and, furthermore, there was compelling

evidence that ARC did not approve of complainant's reaction to the

reorganization, including the filing of an EEO complaint and the filing

of multiple subsequent complaints. The AJ also found that a review of the

male employee's and complainant's supervisory appraisals revealed that in

the category of adaptability, she scored higher than he, and her overall

evaluation score was outstanding and his score was merely competent.

In addition, the AJ found that the reliance upon the lack of long term

management experience was a direct result of prior discrimination which

tainted the entire selection procedure which in and of itself established

a violation. The AJ noted that the entire selection process was tainted

by LSC's presence on the interview panel. Based on the foregoing,

the AJ concluded that complainant established, by a preponderance of

the evidence, that she had been discriminated against in reprisal for

her prior EEO activity.

With regard to the Counsel/Section Chief, Corporate Affairs selection,

ARC indicated that she selected the female employee because she had

recent and on going experience as a Section Chief and complainant

had not served in a management position with RTC as recently as had

that employee. The AJ found that ARC's articulated reason was a direct

result of the agency's prior discriminatory actions and the reliance on

its own discriminatory actions as a reason not to place complainant into

the position violated the law. Based on the foregoing, the AJ concluded

that complainant established, by a preponderance of the evidence, that

she had been discriminated against in reprisal for prior EEO activity.

With regard to complainant's request for compensatory damages, the AJ,

based her own and her doctor's testimony, found sufficient evidence to

establish that she suffered harm which was proximately caused by the

discriminatory actions on the part of the agency. Thus, the AJ concluded

that complainant was entitled to recover pecuniary and non-pecuniary

compensatory damages in an amount sufficient to make her whole for the

harm suffered. Specifically, the AJ awarded complainant $10,000 for

nonpecuniary compensatory damages in order to compensate her for the

mental and emotional harm suffered.

In a final decision dated October 3, 1997, the agency rejected the

findings and conclusions of the AJ, and entered a finding of no

discrimination. It is from this decision that complainant now appeals.

After a careful review of the record in its entirety, including

the statements submitted on appeal, the Commission finds that the

AJ's recommended decision sets forth the relevant facts and properly

analyzes the appropriate regulations, policies and laws. After careful

consideration of the arguments of the parties, and based upon the evidence

of record, the Commission discerns no basis to disturb the AJ's finding

of discrimination. In reaching this decision, the Commission notes that

the credibility determination of the AJ are entitled to great deference

due to the AJ's first-hand knowledge, through personal observation, of the

demeanor and conduct of the witnesses at the hearing. Esquer v. United

States Postal Service, EEOC Request No. 05960096 (September 6, 1996);

Willis v. Department of the Treasury, EEOC Request No. 05900589 (July

26, 1990).

Accordingly, it is the decision of the Commission to REVERSE the agency's

final decision which rejected the AJ's finding of discrimination.

In order to remedy complainant for its discriminatory actions, the agency

shall, comply with the following Order.

ORDER

The agency is ORDERED to take the following remedial actions:

(1) In accordance with the AJ's recommended decision, the agency shall

immediately cease and desist from engaging in any further discriminatory

or retaliatory actions. The agency shall immediately expunge any and

all negative references that remain in any file relating to complainant.

The agency shall immediately pay complainant for any and all lost back

pay, with interest, as well as any other benefits of employment that

she would have received but for the discrimination.

(2) The agency shall take whatever actions are appropriate to

eliminate any lingering negative effects from the discriminatory actions.

This shall include developing mail procedures that ensure the privacy of

EEO mail. Training shall be provided to the agency officials responsible

for the agency's actions at issue on the obligations and duties imposed

by Title VII.

(3) The agency shall pay for all pecuniary damages that are directly

attributable to the agency's actions including, costs for the medical

provider, transportation and parking costs for those trips and any sick

or annual leave used as a result of these medical visits. The agency

shall also reimburse complainant for any sick leave or annual leave

which was used as a consequence of stress and/or reactive depression.

Complainant shall also be paid $10,000 in order to compensate her for

the mental and emotional harm suffered.

(4) The agency shall post at the FDIC copies of the attached notice.

Copies of the notice, after being signed by the agency's duly authorized

representative, shall be posted by the agency within thirty (30) calendar

days of the date this decision becomes final, and shall remain posted

for sixty (60) consecutive days, in conspicuous places, including all

places where notices to employees are customarily posted. The agency

shall take reasonable steps to ensure that said notices are not altered,

defaced, or covered by any other material. The original signed notice

is to be submitted to the Compliance Officer at the address referenced

in the statement entitled �Implementation of the Commission's Decision,�

within ten (10) calendar days of the expiration of the posting period.

(5) The agency is further directed to submit a report of compliance,

as provided in the statement entitled �Implementation of the Commission's

Decision.� The report shall include supporting documentation verifying

that the foregoing corrective actions have been implemented.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

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 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 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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such 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. 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 16, 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.

2The record indicates that effective March 31, 1995, the FDIC was given

the authority to process informal and formal discrimination complaints

filed against the RTC, which was closed on December 31, 1995.

3The record indicates that at the hearing complainant withdrew her

allegations of age discrimination.

4It is noted that the AJ, initially, rejected the agency's argument

that judicial estoppel should apply to complainant's EEO claims since

she testified before the United States Senate Committee and provided

affidavits which referenced a part of the rationale for the agency's

actions, political motivations, and the targeting of her because she

was a �whistle-blower.� It is further noted that the AJ found that

complainant failed to establish that the �put-back� process, which was,

subsequently, rescinded, had a disparate impact on female employees.