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.