01991593
01-28-2000
Ronda L. Rodriguez, Complainant, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Ronda L. Rodriguez, )
Complainant, )
v. ) Appeal No. 01991593
) Agency No. 95-38
Janice R. Lachance, ) Hearing No. 350-98-8212X
Director, )
Office of Personnel Management, )
Agency. )
______________________________)
DECISION
On December 5, 1998, complainant filed a timely appeal of a November 5,
1998 final agency decision dismissing her complaint due to untimely EEO
Counselor contact.<1>
In her September 15, 1995 complaint, complainant alleged that she
was discriminated against based on sex (female) when on May 27, 1995,
she was notified by the agency that her insurance carrier, Intergroup
of Arizona, properly denied benefits for her medical breast reduction
surgery, whereas they had paid for a medical breast reduction for a male.
The record indicates that complainant previously suffered back and neck
pain and yeast infections under her breasts due to her enlarged breasts,
which occurred as the side effects of her taking antidepressants,
i.e., tricyclites. Complainant indicated that her request for breast
reduction surgery and its subsequent appeal were denied by Intergroup
Insurance on December 16, 1994, but she had her surgery on January 6,
1995, and paid for it herself. Complainant stated that on March 8,
1995, during her visit to her physician, she was told that Intergroup
Insurance was paying for a man to have breast reduction surgery and he
felt that it was discrimination. By letter dated March 11, 1995, which
was addressed to the agency's Office of Insurance Programs, complainant
claimed that she was discriminated against as a woman when her request
was denied, described above, and requested that Intergroup Insurance
reimburse her for her medical costs for the surgery. By letter May 23,
1995, the agency responded by stating that Intergroup Insurance properly
denied benefits on her claims at issue. Complainant, subsequently,
contacted an EEO Counselor concerning the matter on June 20, 1995.
In its final decision, the agency stated that complainant's EEO Counselor
contact with regard to her complaint was untimely. The agency noted
that after complainant's filing of the complaint, it completed the
investigation thereof, and complainant, subsequently, requested a hearing.
The agency further noted that on September 22, 1998, an Administrative
Judge (AJ), prior to a hearing, issued an order granting the agency's
motion to dismiss and remanded the complaint to the agency with his
recommendation that the agency dismiss the complaint due to untimely
EEO Counselor contact. Therein, the AJ stated that complainant's EEO
Counselor contact on June 20, 1995, was beyond the requisite time limit
after she learned of the alleged discriminatory treatment on March 8,
1995.
On appeal, complainant contends that the Intergroup Insurance�s pamphlet
(1995) clearly states that �No lawsuit may be brought to recover on a
claim for this Plan's benefits until you . . . or your provider exhausts
this OPM review procedure . . . .� Complainant, thus, asserts that the
45-day time limit period did not begin to run until she received the May
23, 1995 letter from the agency's Office of Insurance Programs denying
her insurance claims.
Initially, we note that Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)) prohibits the
agency's dismissal of a complaint after a complainant requested a hearing.
However, in this case, since the AJ already found that complainant's
EEO Counselor contact with regard to the present complaint was untimely,
in the interest of judicial efficiency, we need not remand the case back
to the AJ; thus, the matter will be reviewed accordingly.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action. The Commission has adopted
a �reasonable suspicion� standard (as opposed to a �supportive facts�
standard) to determine when the limitation period is triggered under
the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2); Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period is not triggered until a complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination have become apparent.
After a review of the record, we find that complainant had or should
have had a reasonable suspicion of discrimination concerning the alleged
discriminatory claim on March 8, 1995. Complainant clearly indicated
that although she was denied benefits from her insurance carrier for her
medical breast reduction surgery on December 16, 1994, she learned on
March 8, 1995, from her physician that the insurance carrier purportedly
paid benefits to a male for the same surgery. Complainant, however,
did not contact an EEO Counselor with regard to the matter until June 20,
1995, which was beyond the 45-day time limit set by the regulations.
On appeal, complainant contends that the 45-day time limit period did
not begin until she received the May 23, 1995 letter from the agency.
However, we note that this letter did not provide complainant with any new
information other than what she already knew about the alleged matter,
i.e., the agency merely indicated that the insurance carrier's previous
decision to deny her claim at issue was proper. Complainant also contends
that she could not file an EEO complaint since the insurance carrier
prohibited her from filing a lawsuit until she exhausted the agency's
review procedure concerning her insurance claim. We note, however, that
there is no evidence in the record to show that the insurance carrier
prohibited complainant from filing an EEO complaint at any time concerning
the alleged discriminatory incident nor is there any evidence that she
was unaware of the EEO complaint procedure, including the requisite
time limit to contact an EEO Counselor. Based on the foregoing, we find
that complainant failed to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's final decision is hereby AFFIRMED.
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.