01990587
02-15-2000
Rose Cherrier, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Rose Cherrier v. Department of Housing and Urban Development
01990587
February 15, 2000
Rose Cherrier, )
Complainant, )
)
v. )
) Appeal No. 01990587
Andrew M. Cuomo, ) Agency No. FW 97 43 M
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD), dated September 30, 1997, pertaining to 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 Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
On February 24, 1997, complainant contacted the EEO office regarding
allegations of discrimination based on national origin (Hispanic),
sex (female), and reprisal. Informal efforts to resolve complainant's
concerns were unsuccessful. Accordingly, on May 28, 1997, complainant
filed a formal complaint.
The agency framed complainant's claim as follows:
From 1992 though 1995, complainant was subjected to sexual and non-sexual
harassment in the form of: ridicule, public humiliation, verbal abuse,
embarrassment, false accusations, and threat of dismissal from her
position. Complainant also alleges that these intolerable working
conditions forced her to involuntarily resign from her position in
August 1995.
The agency issued a FAD, dismissing the complaint on the grounds
that it stated the same claim that had been decided by the agency and
complainant failed to timely contact a counselor. Specifically, the
agency stated that complainant's claim of harassment was the same as two
prior complaints (Case No. FW 93 22 and FW 93 45) that were addressed in a
FAD issued on June 28, 1995. With respect to complainant's constructive
discharge claim, the agency concluded that complainant should have
contacted a counselor within forty-five days of her retirement in August
1995. Complainant did not contact the EEO Counselor until February 16,
1996, well beyond the time limitation.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) requires that
complaints of discrimination should be brought to the attention of the
Equal Employment Opportunity 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. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The agency dismissed the complaint on the grounds that the harassment
claim was previously addressed by the agency in a prior complaint, and
that complainant failed to timely contact an EEO Counselor regarding
the constructive discharge claim. The Commission finds that the
agency inappropriately framed complainant's complaint as two separate
claims: harassment and constructive discharge. We find, however, that
complainant has presented one claim: harassment that culminated in her
constructive discharge from agency employment in 1995.
The record reflects that complainant claims she was harassed from
November 12, 1992 until her retirement in August 1995. Complainant does
not allege any further incidents of discrimination after August 1995.
Therefore, we find her February 24, 1997 counselor contact to be well
beyond the forty-five day time limitation. Complainant does not contend
that she was unaware of the time limitation or that she did not suspect
discrimination until a later date. Accordingly, we do not find sufficient
reason for extending the time limit. The agency's decision to dismiss
the complaint for untimely counselor contact was proper and is AFFIRMED.
Because of our disposition we do not consider whether the complaint was
properly dismissed on the grounds that it states the same claim that
has been decided by the agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
February 15, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.