01976528
01-05-2000
Marseille D. Jaco, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corp., (Resolution Trust Corporation), Agency.
Marseille D. Jaco v. Federal Deposit Insurance Corp.
01976528
January 5, 2000
Marseille D. Jaco, )
Complainant, )
)
v. )
) Appeal No. 01976528
Donna A. Tanoue, ) Agency No. RTC-9514
Chairman, )
Federal Deposit Insurance Corp., )
(Resolution Trust Corporation), )
Agency. )
__________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (the Commission) from the agency's final decision (FAD)
concerning her allegation that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.<2>
ISSUE PRESENTED
The issue presented in this appeal is whether the agency's FAD, which
determined that complainant failed to establish she had been discriminated
against on the bases of her sex (female) and reprisal, should be vacated.
BACKGROUND
Complainant filed a formal complaint dated November 27, 1994, claiming
that:
1) on September 1, 1994, she was issued a Letter of Warning and removed
from the Commercial Participation Disposition Program;
2) on September 8, 1994, she was removed from oversight of three Technical
Evaluation Panels TEPs (TEP) which she chaired;
3) on September 15, 1994, her supervisor, A-1, then Head, Asset Marketing
Department, allegedly requested that she violate contract procedures by
submitting a TEP recommendation report which had not been reviewed or
executed by a TEP member;
4) on October 21, 1994, she was notified by management, while she was
at home on sick leave, that she had been removed from another project
concerning a sale of the SAMCO loans;
5) on October 19, 1994, she was denied advance sick leave, despite prior
approval, and placed on leave without pay (LWOP);
6) on October 26, 1994, she was contacted by Personnel, while at her
home, and informed that she would not be granted advanced sick leave
since she had not submitted a written request for such;
7) on November 7, 1994, she returned to work and was informed by A-1
that based on her physician's work release statement, she should not
have returned to work at that time;
8) on November 16, 1994, she received her bi-weekly paycheck for pay
period 21, which was due to her on November 8, 1994;
9) on December 14, 1994, A-1 returned her 90-day Notice of Expiration of
her appointment to Personnel inaccurately indicating that she refused to
provide written acknowledgment of the Notice, thus forcing her to sign
an untimely issued Notice without benefit of her attorney's review; and
10) on March 31, 1995, her temporary appointment as an Asset Specialist,
LG-301-14, was allowed to expire without being renewed.
According to the agency, an investigation of complainant's complaint was
conducted and, on September 16, 1996, the Report of Investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge were transmitted to complainant's attorney. According to the
agency, complainant, although asked, did not provide testimony during the
investigation and did not indicate whether she wanted an administrative
hearing.<3> Thereafter, the agency issued a final decision dated July 7,
1997, which found that complainant had not been discriminated against. It
is from this decision that complainant now appeals.
On appeal, complainant argued, among other things, that she was
denied an opportunity to participate in the investigation of her
complaint because the investigator "did not correct my address, nor
my change in representation (as I requested previously in writing to
them)." Complainant submitted a copy of a letter that she wrote to D-1,
the Director of the FDIC's Department of Equal Employment Opportunity
and Affirmative Action, on February 5, 1996. In the letter, which was
written three months before the agency's investigation, complainant
indicated that:
This is formal notification that my address has changed and that [her
attorney's name] is no longer my representative. I contacted [D-2,
the RTC Complaints Adjudication Manager] by telephone to also change
my address. Please forward any correspondence to me directly at [my
new address].
According to complainant, since her former attorney no longer represented
her, the attorney did not respond to the investigator, nor did she
notify complainant that she had received correspondence concerning her
complaint. Therefore, complainant argued that the agency's investigation
should be reopened. The record is not clear when or how complainant
discovered that the agency had issued a final decision in her case. On
appeal, she stated that "only through my own efforts during October 1997,
was I made aware of the final agency decision and my appeal rights." The
record indicates that, as early as August 28, 1997, she informed the
Commission, by facsimile, that she had been denied an opportunity to
participate in the investigation of her complaint. In September 1997,
she, in requesting an extension of time to file a statement in support of
her appeal, informed the Commission that she had only recently received
the investigation file.
On appeal, the agency submitted an affidavit from D-2, dated November 21,
1997, that stated, in part, that:
As Manager, Complaints Processing Section at RTC and FDIC, I
was responsible for overseeing the administrative complaints of
discrimination. I was also responsible for maintaining a record
of incoming and outgoing correspondence generated in the course of
processing complaints of discrimination. I have reviewed the FDIC
administrative EEO records that were made at or near the time of the
matters reflected therein, by or from information transmitted by a person
with knowledge, and were kept in the course of processing complaints
of discrimination. Through a review of the FDIC EEO records, I have
determined that there is no record of FDIC receiving a letter from [the
complainant] to [the former Director], dated February 5, 1996, in which
[the complainant] indicated her change of address and the fact that her
attorney . . . no longer represented her. I further state that I have no
recollection of the specific telephone conversation with [the complainant]
allegedly informing me that her address had changed. If the FDIC had
received a letter from [the complainant] indicating a change of address,
or if I had a conversation with [the complainant] indicating a change of
address, such information would have been noted in [the complainant's]
file as a matter of routine in the usual course of business.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
proper course of action here is to VACATE the agency's final decision
and to REMAND complainant's complaint for a supplemental investigation as
indicated below. We find that complainant was denied: (1) an opportunity
to participate in the agency's investigation of her complaint; and (2) an
opportunity to decide whether she wanted an administrative hearing. There
is no dispute in this case that complainant was never informed that
the agency's investigator was trying to contact her or that she had the
opportunity to have an administrative hearing. We are not persuaded by
D-2's affidavit. Although she was unable to find complainant's February
6, 1996 letter, this does not indicate that the letter was never mailed
or received. We also do not find it unusual that D-2 would not remember
a conversation with complainant that would have taken place twenty-one
(21) months before. We are also not persuaded by the agency's argument on
appeal that "even assuming that there was some error in the processing
of the complaint, any such error did not adversely affect complainant's
rights." We disagree. At the very least, complainant was unable to have
her allegations brought before an EEOC Administrative Judge.
CONCLUSION
The agency's final decision is VACATED and complainant's complaint is
REMANDED to the agency for further processing.
ORDER
The agency is ORDERED to take the following actions:
1. Within 60 days of the date when this decision becomes final the
agency shall supplement the complaint file by providing complainant
the opportunity to submit an affidavit. The agency shall also provide
complainant with the opportunity to request a hearing on her allegations
in accordance with 64 Fed. Reg. 37,644, 37,656-57 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108(f);
2. Thereafter, if complainant elects to proceed with a hearing, the
agency shall transmit the case to the appropriate EEOC District Office
for assignment of an Administrative Judge (AJ) and the scheduling of a
hearing, and shall notify complainant that it has done so. If complainant
elects not to proceed with a hearing, the agency, within 60 days of
receiving notification of the complainant's election, shall issue
a final decision on the merits of claims (1) through (10) and notify
complainant of the appropriate appeal rights. See 64 Fed. Reg. 37,644,
37,657-58 (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.110(b).
A copy of the agency's notices to complainant regarding her affidavit,
her right to request a hearing, and a copy of the notice requesting
assignment of an AJ and/or the new final decision must be sent to the
Compliance Officer as referenced below.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
Jan. 5, 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 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.
2According to the record, on March 31, 1995, the authority to investigate
employment discrimination complaints filed against the Resolution
Trust Corporation (RTC) was transferred to the Federal Deposit Insurance
Corporation (FDIC). Furthermore, the record indicates that the RTC closed
on December 31, 1995.
3The record contains an August 4, 1996 memorandum from the investigator
indicating that:
The record does not contain an affidavit or pretext affidavit from the
complainant because neither the complainant nor her representative of
record responded to the Investigator's request for an affidavit. The
Investigator telephoned the complainant's representative on 05/22/96,
05/31/96, and 06/06/96. On each occasion, the representative was out,
and a message was left for her to return the call. No return call was
forthcoming. On 06/06/96, the Investigator submitted a written request for
an affidavit to the complainant's representative, with a copy mailed to
the complainant. No response was received. On 06/10/96, the Investigator
followed up with a call to the representative. The representative was
out, and a return call was requested, but not received. Thereafter,
with permission of the OEO, the investigation proceeded without benefit
of a complainant affidavit.
We also note the Investigator's statement that "on 07/24/96, the letter
mailed to the complainant . . . was returned with the notation the Post
Office box shown as the complainant's address of record was closed,
with no forwarding order."