01973729
10-05-1999
Ilene E. Blinick, Appellant, v. Andrew Cuomo, Secretary, Department of Housing and Urban Development Agency.
Ilene E. Blinick, )
Appellant, )
)
v. ) Appeal No. 01973729
) Agency No. PI-95-01-R
Andrew Cuomo, )
Secretary, )
Department of Housing and )
Urban Development )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Appellant alleged that, with respect to the issues enumerated below,
she was discriminated against on the basis of age (DOB: 9/12/40) and in
reprisal for filing a grievance. The issue presented herein is whether
the agency properly dismissed appellant's allegations.
Appellant filed a formal complaint on November 1, 1994. In its first
FAD, the agency dismissed the complaint in its entirety. On appeal, we
determined that the FAD had correctly dismissed reprisal as a basis of
discrimination since there was no evidence that appellant participated in
prior protected activity. However, we found that based on the record,
we could not determine whether the agency's dismissal of appellant's
allegations of age discrimination was proper. Accordingly, we remanded
the complaint and ordered the agency to supplement the record with
the following documentation: (1) the agency's letter of November 9,
1994, requesting that appellant clarify her complaint; (2) appellant's
response dated November 23, 1994; (3) the agency's letter of January
19, 1995, requesting clarification of appellant's complaint; and (4)
appellant's response of February 1, 1995. The agency supplemented the
record with the November 1994 letters and represented that the January
19, 1995 letter was actually a phone call and that appellant's February
1, 1995 response was an electronic message. The agency then issued
a second FAD dismissing appellant's allegations on various grounds.
It is from this decision appellant now appeals.
In its FAD, the agency stated that, by letter dated November 9, 1994,
appellant was asked to provide clarification and specific dates of the
acts she alleged to be discriminatory. In appellant's November 23, 1994
response she identified the following allegations: (1) failure to promote;
(2) non-selection for positions; (3) rejection of suggestions submitted
through the IDEAS program or failure to properly compensate when accepted;
(4) assignment of work; (5) lack of recognition for work performed; (6)
denial of training; (7) location of work station; (8) general disparate
treatment occurring since 1990; and (9) denial of permanent promotion to
a GS-14 after expiration of temporary promotion in April 1994. However,
the FAD found that appellant failed to provide any specific dates on
which these acts occurred. The agency, correctly identifying the date
of appellant's first contact with an EEO counselor to be July 13, 1994,
dismissed allegations 1-9 for untimely counselor contact pursuant to
29 C.F.R. � 1614.107(b); and concluded that it could not determine, in
the absence of any specific dates, whether the theory of a continuing
violation was applicable.
The FAD also found that appellant asserted two additional allegations.
In regard to allegation #10 that appellant was not selected for promotion
to the position of Public Housing Revitalization Specialist, GS-1101-14,
which was advertised in April 1994, the agency found that appellant
never provided the agency with information as to when she became aware of
her non-selection. Thus the agency dismissed this allegation pursuant
to 29 C.F.R. �� 1614.107(b) and (g). Finally, regarding allegation
#11 that, as a GS-13, appellant was required to perform the same work
as employees at the GS-14 level without being provided GS-14 pay, the
agency concluded that appellant failed to state a claim and failed to
raise the allegation with an EEO counselor. Thus the agency dismissed
the allegation pursuant to 29 C.F.R. �� 1614.107(a) and (b).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO 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. Where, as here, there
is an issue of timeliness, "[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703
(January 4, 1994) (quoting Williams v. Department of Defense, EEOC
Request No. 05920506 (August 25, 1992)).
Although appellant has not been forthcoming with specific dates,
she did indicate in her November 23, 1994 response that her work
assignment, allegation #7, was transferred in June 1994. Even assuming
that appellant's assignment was transferred on June 1, 1994, her EEO
counselor contact on July 13, 1994, was timely. Moreover, appellant
contends that the alleged acts of discrimination were ongoing. Since the
agency has not met its burden of providing sufficient evidence to support
its conclusion that appellant's EEO counselor contact was untimely, we
find that the agency's dismissal of appellant's allegations was improper,
and we remind the agency that the EEO counselor's report can and should
be used to provide information relevant to appellant's complaint.
The Commission also finds that since there is no evidence that the
agency provided appellant with a written request to provide relevant
information in regard to allegation #10, the agency's dismissal pursuant
to 29 C.F.R. � 1614.107(g) was improper. Furthermore, we are unable
to ascertain the agency's rationale for dismissing allegation #11 for
failure to state a claim since appellant alleges that because of her
age she was being paid at a GS-13 pay rate while doing the same work
as a GS-14. Likewise, we are not persuaded that allegation #11 should
be dismissed because it was not brought to the attention of an EEO
counselor. Appellant asserts in her November 23, 1994 letter that she
specifically discussed this allegation with her EEO counselor, and we
find that even if she did not raise it, allegation #11 is sufficiently
related to appellant's other allegations to defeat dismissal under 29
C.F.R. � 1614.107(b). Fischer v. Securities and Exchange Commission,
EEOC Appeal No. 01981847 (April 21, 1999).
Accordingly, we VACATE the FAD and REMAND the above referenced eleven
allegations for processing in accordance with this decision and ORDER
below.<1>
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. � 1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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).
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:
October 5, 1999
_____________________ ______________________________
DATE Carlton Hadden, Acting Director Office of
Federal Operations1 We note that the agency dismissed appellant's
allegation that she was not promoted to Housing Management Specialist,
GS-14, in 1989, pursuant to 29 C.F.R. � 1614.107(d) because appellant
had pursued that allegation through a negotiated grievance procedure.
Appellant argues on appeal that she never raised that 1989 non-promotion
as an allegation. We agree with appellant.