01986484
08-12-1999
Phillip H. Savage, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Phillip H. Savage v. Department of Housing and Urban Development
01986484
August 12, 1999
Phillip H. Savage, )
Appellant, )
)
v. )
) Appeal No. 01986484
Andrew M. Cuomo, ) Agency No. EO 98 02A
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
agency decision (FAD), dated July 28, 1998, which the agency issued
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission
accepts the appellant's appeal in accordance with EEOC Order No. 960,
as amended.
In his formal EEO complaint, dated January 12, 1998, appellant
alleged that he was discriminated against based on race (black), sex
(male), age (65), and reprisal (prior EEO activity).<1> In its FAD,
the agency framed appellant's complaint as alleging that appellant was
subjected to discrimination when: 1) appellant was denied a non-hostile,
non-discriminatory working environment, e.g., proper office space, allied
accommodations, secretarial assignment, duties and responsibilities
consistent with appellant's SES classification, elements and standards
consistent with the only performed duties and responsibilities, and
reassignment to the vacant Deputy Assistant Secretary or similar SES
position; and 2) appellant's supervisor denied appellant a bonus or
pay raise for the rating period October 1, 1996 to September 30, 1997.
The agency dismissed both allegations for stating claims that are either
pending before or have been decided by the agency or Commission.
Initially, we note that appellant contends that because he requested a
hearing before an Administrative Judge, the agency acted improperly by
issuing its FAD before the hearing was held. The Commission has held
that an agency may dismiss a complaint on procedural grounds so long
as there has not been a finding of discrimination. See Hill v. General
Servs. Admin., EEOC Request No. 05890383 (Sept. 12, 1989) (agency can
raise timeliness even where processing has been completed and a final
decision issued, so long as the final decision found no discrimination).
In dismissing a portion of appellant's complaint, the agency determined
that the issues in allegation 1 were raised in Case No. EO 97 01 and
that allegation 2 was "a consequence of the allegation [apppellant]
raised in EO 98 02." The Commission finds that there is insufficient
evidence in the record which indicates that appellant has raised the
instant allegations in prior complaints. The agency failed to provide
copies of the earlier complaints or other relevant documentation regarding
the basis of their dismissal.
Accordingly, based on a review of the record, and for the reasons cited
above, it is the decision of the Commission to VACATE the agency's
decision and REMAND the complaint for further processing in accordance
with the regulations and ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. Supplement the record with copies of the complaints that purportedly
address the same claims as the remanded allegations in the instant
matter.
2. Address appellant's argument on appeal that allegation 2 was
improperly framed, by clarifying whether a nexus exists between the
performance appraisal and denial of a bonus or whether they are separate
issues.
Thereafter, the agency shall issue a final decision, with appeal rights to
the Commission, either accepting for investigation or again dismissing
appellant's complaint, in part. In the event the agency dismisses
appellant's complaint in part, it shall provide the legal grounds and
evidentiary support for such dismissal. The supplemental investigation
and issuance of the final decision must be completed within sixty (60)
calendar days of the date this decision becomes final. A copy of the
final decision must be submitted 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:
August 12, 1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1In a letter dated July 20, 1998, the agency accepted one of appellant's
allegations (performance appraisal rating) and notified him that the
remaining allegations would be dismissed in a FAD to be issued under a
separate cover.