Sonya T. Inabinet, Appellant,v.Donna A. Tanoue Chairman Federal Deposit Insurance Corp. Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01982248 (E.E.O.C. Apr. 2, 1999)

01982248

04-02-1999

Sonya T. Inabinet, Appellant, v. Donna A. Tanoue Chairman Federal Deposit Insurance Corp. Agency.


Sonya T. Inabinet v. Federal Deposit Insurance Corp.

01982248

April 2, 1999

Sonya T. Inabinet, )

Appellant, )

)

v. ) Appeal No. 01982248

) Agency No. 9766

Donna A. Tanoue )

Chairman )

Federal Deposit Insurance Corp. )

Agency. )

________________________________)

DECISION

I. INTRODUCTION

On January 30, 1998, appellant filed the instant appeal from the agency's

January 8, 1998 final decision dismissing appellant's complaint.

The agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(b),

on grounds of untimeliness.

II. ISSUE

Whether the agency properly dismissed appellant's allegations as

untimely.

III. BACKGROUND

On December 20, 1996, the agency issued a letter of reprimand to

appellant. In response, on January 4, 1997, appellant filed a grievance.

The grievance was denied at the first and second steps. The memorandum

denying the step two grievance was dated February 10, 1997.

On March 21, 1997. appellant initiated contact with an EEO counselor.

Thereafter, appellant filed a formal complaint in which she alleged that

she had been discriminated against by the agency on the basis of race

(Afro-American), color (black), sex (female) and reprisal. The complaint

alleged, in part, as follows:

This discrimination has been an on-going process and I became aware of

this on February 10, 1997 . . . . My request to remove the reprimand

given 12/20/96 was denied. I felt that I was being treated differently

by not receiving an independent review.

Following an exchange of correspondence between the agency and appellant

concerning the details of her allegations, on January 8, 1998, the agency

issued its final decision, dismissing all of appellant's allegations

as untimely. In that decision, the agency summarized the specific

discriminatory acts alleged by appellant as follows:

1. From September 17, 1993, through January 5, 1997, Complainant performed

Management Analyst duties, substantially at the grade 13 level, but was

classified as an Administrative Assistant and paid at the grade 9 level.

2. On December 4, 1996, Complainant was granted annual leave from 12:00

p.m. to 4:45 p.m., but at noon was placed on administrative leave

because of her conduct which resulted in a reprimand . . . but her

annual leave was not restored.

3. Complainant was issued a Letter of Reprimand dated December 20, 1996,

without an independent review of the events leading to the reprimand.

4. On January 14, 1997, Complainant's temporary promotion to

Administrative Specialist, GG-301-09, from Administrative Assistant,

GG-303-07, was terminated.

5. On January 29, 1997, Complaintant was issued a late performance

appraisal for the period covering October 1995 through September 1996,

in which management rated her overall performance below the level of

superior and thereby disqualified and denied her a superior performance

award.

In its final decision, the agency dismissed all of the allegations of

the complaint on the ground that appellant had failed to comply with 29

C.F.R. � 1614.105(a)(1) which imposes a 45-day time limit for initiating

contact with an EEO counselor. The agency found that the events giving

rise to appellant's claims all occurred more than 45 days prior to her

first contact with an EEO Counselor on March 21, 1997.

IV. ANALYSIS AND FINDINGS

A. The Claims Addressed In the Final Agency Decision Are Time-Barred

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints

of discrimination be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered

until a complainant reasonably suspects discrimination, but before all

the facts that support a charge of discrimination have become apparent.

We find that the agency correctly dismissed allegations 1 through

5, as time-barred. The latest of the events giving rise to these

allegations occurred on January 29, 1997. The 45-day time period

for raising allegations of discrimination expired on March 15, 1997.

Appellant's first contact with an EEO counselor occurred on March 21,

1997 and was untimely unless appellant can establish some basis for

extending the time limit.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission. 29 C.F.R. � 1614.105(a)(1)

Appellant asserts that she did not become aware of the discriminatory

nature of the personnel actions about which she complains until

February 10, 1997 when she learned that her step-two grievance had

been rejected. However, appellant offers no explanation of how that

rejection provided her with any new information about the allegedly

discriminatory motivations for the agency's actions.<1> Without such an

explanation, we cannot credit appellant's implied representation that she

had no reasonable suspicion of discrimination prior to February 10, 1997.

For this reason, we find that there is no basis for extending the 45-day

time limit.

B. The Agency Failed To Address An Allegation Raised In The Formal

Complaint.

In its final decision the agency failed to address one additional

allegation of discrimination made by appellant. On careful review of the

record, including the EEO Counselor's report, the correspondence between

the agency and appellant, and the statements submitted by appellant in

this appeal, it is apparent that appellant is contending that she was

discriminated against when, after the letter of reprimand was issued,

her grievance was rejected without an impartial "independent review."

Appellant asserts, in particular, that the agency treated her in a

discriminatory manner when it permitted an agency official who had

been involved in reprimanding her also to decide the merits of her

grievance. <2> A claim of discrimination based on those facts would

not be time-barred because appellant did not learn that her step-two

grievance had been denied until February 10, 1997, less than 45 days

before she initiated EEO Counselor contact.

Because the agency failed to address this allegation and because the

record on appeal is insufficient to permit the Commission to determine

the validity of allegation, the allegation must be returned to the

agency for further procedings.<3>

V. CONCLUSION

For the forgoing reasons, we AFFIRM in part the final agency decision

and REVERSE in part the final agency decision (3) and REMAND this case

for further processing consistent with this decision and order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a 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 (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. � 1614.10.

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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. 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 (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:

April 2, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 Appellant points out that on February 10, 1997 she learned that her

step two grievance had been decided by a person who was not impartial.

This fact, though relevant to a claim of discrimination in the processing

of the grievance, see, section B, infra, does not cast any light on

the allegedly discriminatory motivations for the other agency actions

described in the complaint.

2 See, e.g., letter dated December 2, 1997, from appellant to an

agency EEO official, stating "Yes, based on race, color, national

origin and sex on February 10, 1997, I was not afforded an independent

review of a personnel action taken against me. The Assistant Director

of Administration in DIRM became judge, jury, and sentencer of this

issue. . . ." See also, Appeal statement of appellant at 2. ("The same

official throughout this process reviewed it and she should have excused

herself from this case because she was the same official in several phases

of this case. No other white employee was ever treated this way. . . ."

3 On remand, the agency's consideration of this allegation should include

the question of whether appellant's contentions constitute an improper

collatteral attack on a negotiated grievance procedure. Lingad v. USPS,

EEOC Request No. 05930106 (June 24, 1993).