01990808
01-12-2000
Tammy L. Wollersheim, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Tammy L. Wollersheim, )
Complainant, )
)
v. ) Appeal No. 01990808
) Agency No. FDIC-98-91
Donna A. Tanoue, )
Chairman, )
Federal Deposit Insurance Corporation, )
Agency. )
____________________________________)
DECISION
On November 2, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on October
5, 1998, pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> In her complaint, complainant alleged that
she was subjected to discrimination on the basis of sex (female) when:
Complainant was subjected to a pattern of harassment including:
Complainant was made to feel uncomfortable during a field office meeting
when complainant's male supervisor made a comment referring to women as
�hogs;�
An e-mail was sent to the female administrative assistant, and when
complainant clicked on the icon (a picture of the Mona Lisa), its dress
dropped to expose her breast;
In the Fall of 1996 in Manistique, Michigan, the supervisor commented to
the Senior Vice President of Loan Review and Compliance in complainant's
presence, �why don't you get some of those big burly women to carry
[boxes of documents] to our cars?�
Around July 1997, a luncheon was given for a female employee and one of
the gifts purchased by the supervisor to the female employee was a pair
of bikini panties; and
In the Fall of 1996, at a meeting, complainant made a comment disagreeing
with her supervisor's point-of-view. The supervisor yelled, berated
complainant, and spoke to complainant in a derogatory manner.
The supervisor apologized, but his behavior did not change.
Complainant's supervisor failed to nominate complainant for a
Sustained-Superior-Performance-Award, a Special-Act-Award, or a
Star-Award.
The agency dismissed the claims for failure to file a timely complaint.
Specifically, the agency found that the EEO Counselor discussed the formal
complaint filing deadline with complainant at her final interview, and
mailed a notice-of-right-to-file-a-formal-complaint (NRTF) to complainant
on June 22, 1998. According to the agency, it again notified complainant
via e-mail of time limitations when the NRTF was returned undelivered
on July 27, 1998. The agency found that complainant read the e-mail on
July 29, 1998, but failed to file a formal complaint until August 14,
1998, more than fifteen days later.
On appeal, complainant argues that she was not at home when the June 22,
1998 letter was delivered to her house, but a card instructed her to
retrieve the certified letter from the post office. Complainant argues
that she was unable to reach the post office during its business hours
until July 28, 1998, where she was told that the letter had been
returned to its sender. Complainant then claims that she received
the agency's e-mail on July 29, 1998, instructing her that she had
fifteen days from her receipt of the NRTF to file a formal complaint.
According to complainant, the e-mail also instructed complainant to file
her formal complaint on the forms provided, and that a copy of the forms
was being sent via regular mail. Complainant acknowledges that there
were two attachments to the e-mail, but asserts that she could not open
the attachments. Complainant argues that she received the NRTF and blank
complaint form on July 31, 1998, and timely filed a formal complaint on
August 14, 1998.
In response, the agency argues that constructive notice of the NRTF should
apply. The agency argues that complainant listed a myriad of excuses to
explain her failure to pick-up the NRTF for a month, including a trip out
of the country that began three weeks after complainant received notice
that the certified letter was waiting at the post office. Further, the
agency argues that complainant had notice of the applicable fifteen-day
limitation period after the June 22, 1998 final interview. According to
the agency, complainant was repeatedly told of the fifteen-day limitation
period, but now claims that she was not given notice until July 31,
1998.
The record includes a copy of the July 27, 1998 e-mail from the EEO
Counselor. In this e-mail, the Counselor informs complainant that she
must file her formal complaint within fifteen days of receipt of the NRTF.
The correspondence also states that the appropriate forms were attached to
the e-mail, and would be sent via regular mail. The July 27, 1998 e-mail
does not, however, inform complainant where to file a formal complaint.
The record also includes an e-mail from complainant dated August 11, 1998,
informing the agency that she was unable to open the e-mail attachments.
The August 11, 1998 e-mail also informs the agency that complainant
received a copy of the forms via regular mail on July 31, 1998.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15) calendar
days after the date of receipt of the notice of the right to file a
formal complaint. EEOC Regulations also require the agency to dismiss a
complaint that fails to comply with the applicable time limits contained
in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the
time limits in accordance with � 1614.604(c). See 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified as 29 C.F.R. � 1614.107(a)(2)).
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that �the agency has the burden of providing
evidence and/or proof to support its final decisions.� See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
The notice that complainant �repeatedly� received from the agency informed
her that she must file a formal complaint within fifteen days of receipt
of the notice of right to file. Complainant did not receive a copy
of that notice, however, until July 31, 1998. Further, the agency's
warnings concerning the time limitation never informed complainant
where she should mail her formal complaint. A review of the record
would lead a complainant to believe that she could not file a formal
complaint until she received a copy of the forms referred to in the NRTF.
Therefore, the agency's �notice� was inadequate prior to July 31, 1998.
Accordingly, the agency's dismissal is REVERSED, and the complaint is
REMANDED for further processing.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights 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:
January 12, 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 Assistant 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.