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

Equal Employment Opportunity CommissionAug 16, 2000
05a00791 (E.E.O.C. Aug. 16, 2000)

05a00791

08-16-2000

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


Consuella B. Duckett v. Department of Housing and Urban Development

05A00791

August 16, 2000

.

Consuella B. Duckett,

Complainant,

v.

Andrew M. Cuomo,

Secretary,

Department of Housing and Urban Development,

Agency.

Request No. 05A00791

Appeal No. 01993105

Agency No. OG 98 01

DISMISSAL OF REQUEST FOR RECONSIDERATION

The agency initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Consuella

B. Duckett v. Department of Housing and Urban Development, EEOC

Appeal No. 01993105 (April 14, 2000).<1> By regulation, requests for

reconsideration must be filed within 30 calendar days after the party

receives our previous decision. 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).

A document is timely if it is received or postmarked before the expiration

of the applicable filing period, or, in the absence of a legible postmark,

is received by mail within five days of the expiration of the applicable

filing period. 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.604(b)).

It is noted that the Commission's previous decision included Certificate

of Mailing indicating that for timeliness purpose, the Commission will

presume that this decision was received within five (5) calendar days

of mailing, which was April 14, 2000. The agency filed the request for

reconsideration postmarked May 24, 2000, which was beyond the 30-day

time limit. On request for reconsideration, the agency states that it

received the Commission's previous decision on April 24, 2000. However,

the agency does not provide any supporting evidence other than its mere

assertion to overcome the foregoing presumption, nor does it submit

adequate justification for extending the filing period beyond 30 days.

Accordingly, the agency's request for reconsideration is hereby DISMISSED.

The decision in EEOC Appeal No. 01993105 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.

ORDER (E0400)

The agency is ORDERED to process the remanded claims 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 claims 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)

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 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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 16, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.