Consuella B. Duckett, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01993105 (E.E.O.C. Apr. 14, 2000)

01993105

04-14-2000

Consuella B. Duckett, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


Consuella B. Duckett, )

Complainant, )

)

)

v. ) Appeal No. 01993105

) Agency No. OG 98 01

Andrew M. Cuomo, )

Secretary, )

Department of Housing )

and Urban Development, )

Agency. )

______________________________)

DECISION

Upon review, we find that the agency properly dismissed claims (1) and

(3) in complainant's complaint for the reasons set forth herein, but

it improperly dismissed claim (2) for stating the same claim that was

pending before the agency.<1> In her complaint, complainant alleged

discrimination based on race (Black), sex (female), age (52), and in

reprisal for prior EEO activity when: (1) she was denied a settlement of

her EEO case in the same manner agency settlements were given to white

union officials; (2) she had been denied an opportunity to advance,

even though the 1994 Public Housing reorganization, Supplement 22,

mandated promotion to journeyman levels in the Office of Public and

Indian Housing (PIH) and other divisions without competition; and (3)

the agency failed and refused to provide her with information requested

under the Freedom of Information Act (FOIA).

With regard to claim (1), we find that the agency's failure to settle

complainant's EEO case does not in and of itself constitute an actionable

claim, and it was properly dismissed for failure to state a claim.

See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.107(a)(1)).

With regard to claim (2), the agency, in its final decision, stated that

complainant previously raised the same claim in her previous complaint,

Agency No. PI 97 01, filed on March 7, 1997. However, the agency

failed to provide a copy of the previous complaint and/or any relevant

information in the record in order to sufficiently support its findings.

Furthermore, complainant contends on appeal that her previous complaint

involved the agency's failure to promote her to a GS-12 position, whereas

this instant complaint involved the agency's failure to promote her to

a GS-13/14. Thus, we find that the agency improperly dismissed claim

(2) for stating the same claim that was pending before the agency.

29 C.F.R. � 1614.107(a)(1).

With regard to claim (3), the agency stated that complainant failed to

bring the matter to the attention of an EEO Counselor. However, after a

review of an EEO Counselor's Report, it appears that complainant did raise

the matter, i.e., the denial of her FOIA request, during her counseling.

Nevertheless, we find that claim (3) failed to state a claim within the

purview of the regulations. 29 C.F.R. � 1614.107(a)(1). The Commission

has held that it does not have jurisdiction over the processing of FOIA

request. Instead, persons having a dispute regarding such requests should

bring any appeals about the processing of his or her FOIA requests under

the appropriate FOIA regulations. Gaines v. Department of the Navy,

EEOC Request No. 05970386 (June 12, 1997). Thus, the agency properly

dismissed claim (3). Accordingly, the agency's final decision is hereby

MODIFIED, and claim (2) is REMANDED to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claim 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 claim 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 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 (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 (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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:

April 14, 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 OpportunityAssistant

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.