01982599
01-28-2000
James R. Foster, Complainant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corp., Agency.
James R. Foster v. Federal Deposit Insurance Corp.
01982599
January 28, 2000
James R. Foster, )
Complainant, )
) Appeal No. 01982599
v. ) Agency No. FDIC-95-55
) Hearing No. 100-97-7385X
Donna A. Tanoue, )
Chairperson, )
Federal Deposit Insurance Corp., )
Agency. )
)
DECISION
In accordance with the provisions of Equal Employment Opportunity
Commission (EEOC or Commission) Order No. 960.001, complainant's appeal
from the agency's final decision in the above-captioned matter has been
accepted by the Commission.<1> For the reasons that follow, it is the
decision of the Commission to AFFIRM the agency's final decision, which
adopted the recommended findings and conclusions of the Administrative
Judge (AJ).
Based on our review of the record, we discern no basis to disturb the
AJ's findings and conclusions, which gave full and fair consideration to
the issues presented. On appeal, complainant contends that the agency
failed to investigate his claim that the agency failed to provide
him accommodation for his hearing disability during the June 1990 new
employee orientation. However, we note that complainant made his initial
EEO contact on July 11, 1995, more than five years after the alleged
discrimination. EEOC regulations require that an aggrieved person must
initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory. See 29 C.F.R. � 1614.105(a)(1).
We find that complainant's claim regarding the June 1990 new employee
orientation is untimely. Moreover, we agree with the AJ that complainant
has failed to establish a prima facie case of disability discrimination
regarding any of his claims because he failed to document that he was
a person with a disability. We note that the record contains a copy of
complainant's Statement of Physical Ability dated June 18, 1990, in which
he indicated that he had no hearing problems. Complainant provides no
evidence demonstrating he suffers from a statutorily protected hearing
impairment as defined at 29 C.F.R. � 1630.2(g). Therefore, after a
careful review of the record, including any appeal contentions by the
parties, and any other arguments and evidence not specifically addressed
in this decision, we AFFIRM the agency's final decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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:
January 28, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
1 On 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.