01973731
10-23-1998
William T. Rodgers v. Federal Deposit Insurance Corporation
01973731
October 23, 1998
William T. Rodgers, )
Appellant, )
)
v. ) Appeal No. 01973731
) Agency No. 95-56
Donna A. Tanoue, )
Chairperson, )
Federal Deposit Insurance )
Corporation, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated March 10, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The decision found that the appellant's EEO Counselor contact was
untimely regarding three nonselections. The decision indicated that the
appellant had been notified of the nonselections on March 29, April 11,
and April 27, 1995, but did not contact an EEO counselor until July 7,
1995. Based on occurrences described in the appellant's affidavit and a
January 11, 1996 letter to the EEO Investigator, the decision concluded
that the appellant reasonably should have suspected discrimination based
on sex and age at the time he was informed of the nonselections.
On appeal, the appellant submits an affidavit wherein he represents that
the date he concluded that he may have been a victim of discriminatory
practices was June 22, 1995. He represents that he reached this
conclusion based on information he received from colleagues (some of
whom had been transferred to the facility where the selections had been
made) and from other sources. The appellant further represents that he
contacted an EEO counselor by telephone on June 27, 1995.
After reviewing the record, including the appeal submissions of the
parties, the Commission finds no evidence which proves that the appellant
suspected, or should have suspected, discrimination based on sex prior
to his learning on or about June 22, 1995, that women had been selected
for all three positions. There also is no evidence indicating that the
appellant should have suspected discrimination based on his age (42)
prior to that date. See Murphy v. Social Security Administration, EEOC
Request No. 05950827 (December 11, 1997)(an employee's "resentment"
of a lower performance appraisal rating is insufficient to trigger a
suspicion of discrimination absent his knowledge of the identities of
any employees, or their race, sex, and age, who received more favorable
performance ratings). Accordingly, the Commission finds that the
appellant timely sought EEO counseling on June 27, 1995.
CONCLUSION
For the reason stated above, the Commission REVERSES the agency's
dismissal of the appellant's October 2, 1995 complaint allegations and
REMANDS the complaint for processing as ORDERED below.
ORDER
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall send the complaint file to the EEOC for a
hearing. The transmittal letter shall identify the Administrative Judge
to whom the complaint had been assigned prior to the agency's March 10,
1997 dismissal of the complaint.
(2) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall send a copy of the transmittal letter to the
appellant, the appellant's attorney, and the Compliance Officer referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
October 23, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations