Ronda L. Rodriguez, Complainant,v.Janice R. Lachance, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionJan 28, 2000
01991593 (E.E.O.C. Jan. 28, 2000)

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.