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).