Rose Cherrier, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01990587 (E.E.O.C. Feb. 15, 2000)

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.