Ilene E. Blinick, Appellant,v.Andrew Cuomo, Secretary, Department of Housing and Urban Development Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01973729 (E.E.O.C. Oct. 5, 1999)

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.