01990323
05-12-2000
Martha A. Moreno, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Martha A. Moreno v. Department of Housing and Urban Development
01990323
May 12, 2000
Martha A. Moreno, )
Complainant, )
) Appeal No. 01990323
v. )
) Agency No. FW94-01
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
________________________________)
DECISION
Complainant timely initiated an appeal 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.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges that she was discriminated against on the bases
of national origin (Hispanic) and reprisal (prior EEO activity), when
her supervisor accused her of defrauding the government of one hour and
fifteen minutes and directed her to submit an annual leave slip for the
one hour and fifteen minutes.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Secretary at the agency's Fair Housing & Equal Opportunity
West Branch in Fort Worth, Texas. Believing she was a victim of
discrimination, complainant sought EEO counseling and, subsequently,
filed a formal complaint on October 4, 1993. On July 12, 1994, the
agency accepted the complaint for investigation. At the conclusion of the
investigation, the investigator submitted his investigative report to the
agency on November 10, 1994. Complainant stated that she did not receive
a copy of the investigative report until February 18, 1995. According to
complainant, upon receiving the investigative report which informed her
of her right to request a hearing before an EEOC Administrative Judge,
she requested that the agency refer the matter for a hearing. On July
2, 1996, complainant telephoned the agency to determine the status of
her hearing request. On July 25, 1996, the agency sent complainant
a letter stating that their review of the file did not disclose a
request for a hearing. The agency directed complainant to submit a
copy of the request. The letter further stated that if complainant was
unable to locate a copy of the request, the agency would issue a FAD.
On August 5, 1996, complainant's representative submitted a response to
the agency stating that she had forwarded a hearing request on behalf
of complainant on April 17, 1996. On July 28, 1998, the agency issued
a final decision concluding that complainant failed to establish that
the agency's actions were discriminatory.
The FAD concluded that complainant failed to establish a prima facie
case of national origin discrimination because she did not show that
she suffered an adverse action as a result of her supervisor's actions.
The FAD found that while complainant's supervisor accused her of using an
additional one hour and fifteen minutes for lunch and directed her to use
leave for the extended lunch, he later abandoned this course of action
after complainant explained that she had not been on an extended lunch
but instead was performing official duties during the time. Since the
supervisor did not require her to use leave, the FAD concluded that
complainant suffered no adverse action due to the incident. The FAD
then concluded that the agency's articulated reasons for its actions
were not shown to be pretext for unlawful discrimination.
On appeal, complainant contends that the agency improperly denied
her hearing request and that she established a prima facie case of
discrimination. Specifically, complainant states her supervisor's
action did amount to adverse actions because, had she not produced
evidence demonstrating that she had not taken an extended lunch, her
supervisor would have charged her leave. The agency submits no response
to the appeal.
ANALYSIS
Initially, we address complainant's contention that the agency failed
to schedule a hearing in this matter. After reviewing the record,
we find that the evidence does not support complainant's contention.
The record reflects that complainant's representative indicates that
she requested a hearing in this matter on April 17, 1996. However,
complainant received the investigative report over a year prior to
the hearing request (February 18, 1995). At the relevant time, our
regulations required complainant to submit her hearing request within 30
days of receipt of the investigative file. Since the evidence indicates
that complainant failed to timely request a hearing, we find that the
agency did not act improperly in issuing the FAD without a hearing.
As to the merits of the case, applying the standards set forth in
McDonnell Douglas Corp. v. Green, 411, U.S. 792 (1973), the Commission
agrees with the agency that complainant failed to establish a prima facie
case of national origin discrimination because she did not present any
evidence to show that she was adversely affected by her supervisor's
actions. For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Since the supervisor rescinded his order in light of
his misunderstanding of the situation, we find that complainant suffered
no adverse employment action and thus failed to establish a prima facie
case of national origin discrimination. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
While we agree with the agency's decision in this matter, we take this
opportunity to remind the agency of its obligation under our regulations.
Pursuant to 29 C.F.R. � 1614.108(e), the agency shall complete its
investigation within 180 days of the date of filing of an individual
complaint. In this case, the investigation took 363 days to complete.
Pursuant to 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.110(b)), when the agency
receives a request for an immediate FAD or decides to issue an FAD due
to complainant's failure to request a hearing, it must issue the FAD
within 60 days. In this case, the agency issued the FAD nearly 1,250
days after complainant received the investigative report. The record
provides no explanation for the agency's delinquency.
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 (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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:
May 12, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.