01982239
03-03-1999
Lisa Ann E. Hoffman, Appellant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corp. Agency.
Lisa Ann E. Hoffman v. Federal Deposit Insurance Corp.
01982239
March 3, 1999
Lisa Ann E. Hoffman, )
Appellant, )
)
v. ) Appeal No. 01982239
) Agency No. FDIC-97-103
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 December 18, 1997 decision dismissing appellant's complaint
alleging that she had been discriminated against on the basis of sex
when she was paid less than male employees. The agency dismissed the
matter pursuant to 29 C.F.R. � 1614.301(a), finding that it had been
the subject of a prior grievance proceeding.
II. ISSUE
Whether the agency correctly decided that the complaint should be
dismissed.
III. BACKGROUND
From May 1992 until December 31, 1995, appellant was employed by the
Resolution Trust Corporation (RTC). On December 31, 1995, RTC went
out of existence and the management of its assets and liabilities were
taken over by the Federal Deposit Insurance Corporation (the agency).
At that time, appellant became an employee of the agency.
On March 18, 1996, pursuant to the provisions of a collective bargaining
agreement, appellant filed a Higher Graded Work Claim, in which she sought
retroactive compensation for work performed while she was employed by RTC
and by the agency. On July 26, 1996, she was informed that her claim for
compensation for the period of her RTC employment (i.e. pre-1996) was "not
covered" by the collective bargaining agreement. Appellant's claim with
respect to her employment by the agency (i.e., post-1995) was accepted
for processing. The latter claim was eventually resolved by settlement.
Following that settlement, on May 20, 1997, appellant contacted an EEO
counselor concerning her claim that she had been discriminated against on
the basis of sex when she was undercompensated during her employment by
the RTC. On August 12, 1997, appellant filed a formal complaint against
the agency setting forth that claim.
The agency dismissed appellant's complaint on the ground that appellant,
having elected to assert her claim under the negotiated grievance
procedure, was barred by 29 C.F.R. � 1614.301(a) from filing an EEO
complaint concerning the same subject matter.
IV. ANALYSIS AND FINDINGS
Election of Remedies. Appellant's unsuccessful attempt to resolve her
claim against the RTC through the negotiated grievance process does
not bar her claim here. The Commission has held that the election
of remedies rule, 29 C.F.R. � 1614.301(a), is inapplicable were it
is ultimately determined that the matter asserted in the grievance
procedure is nongrievable. Chai v. NASA, EEOC Request No. 05970016
(July 10, 1998); Holmes v. Dept. of the Navy, EEOC Request No. 05931010
(October 14, 1994). In appellant's case, it was ultimately determined that
RTC employees were not covered by the collective bargaining agreement
and therefore that appellant was unable validly to elect to resolve the
claim through the negotiated grievance procedure. The agency, therefore,
was mistaken in dismissing appellant's claim on the ground that it was
barred by 29 C.F.R. � 1614.301(a).
Timeliness. In its brief on appeal, the agency raises, as an alternative
ground for dismissal, appellant's failure timely to initiate contact
with an EEO counselor within the 45-day period specified in 29 C.F.R. �
1614.105(a)(1).<1> This argument is well taken. The EEO Counselor's
report shows that, at least as early as March 1996, appellant had a
"growing awareness" that she had been discriminated against on the
basis of sex. Despite this awareness, she did not initiate contact
with an EEO counselor until May 20, 1997. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the 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. Here is it apparent
that appellant had a reasonable suspicion of discrimination more
than a year before her initial EEO Counselor contact. It is true
that this Commission has held that where, as here, a matter submitted
to a grievance procedure is rejected as untimely or nongrievable, the
45-day time period for initiating counselor contact begins to run anew.
See, e.g., Chai v. NASA, EEOC Request No. 05970016 (July 10, 1998).
Nevertheless, in the present case, the application of that rule would
not cure appellant's timeliness problem. She was informed on July 26,
1996 that her claim against the RTC was not covered by the grievance
procedure. At that point the 45-day period began to run. Her initial
contact with an EEO counselor took place more than nine months later.
V. CONCLUSION
Accordingly, we AFFIRM the final agency decision.
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.
RIGHT TO FILE A CIVIL ACTION (S0993)
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.F.R.). 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:
March 3, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant addressed the merits of the agency's timeliness argument in
her April 24, 1998 "rebuttal" to the agency's "Opposition to Appellant's
Appeal"