05990297_r
11-05-2001
Maria A. Santana, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Maria A. Santana v. Department of Housing and Urban Development
05990297
November 5, 2001
.
Maria A. Santana,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Request No. 05990297
Appeal No. 01981036
Agency No. FW 97 25
DENIAL OF REQUEST FOR RECONSIDERATION
On January 11, 1999, the agency timely initiated a request to
the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Maria A. Santana v. Department of Housing
and Urban Development, EEOC Appeal No. 01981036 (December 9, 1998).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. � 1614.405(b).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have
a substantial impact on the policies, practices or operations of the
agency. Id.
The record indicates that complainant filed a formal complaint dated
February 7, 1997, alleging discrimination based on national origin
(Hispanic) when she was not selected for several positions since 1991.
Specifically, complainant indicated that she was not selected for the
following positions: Housing Management Assistant - Dallas in 1991;
Housing Management Assistant - Fort Worth in 1992; Wage Requirements
Assistant (Typing) - Fort Worth in March 1994; Realty Specialist - Fort
Worth in 1995; and Program Support Assistant - Fort Worth in August
1996 (Canceled). Complainant also indicated that she was subjected to
harassment and was denied vacation leave by her former supervisor when
she worked in the Dallas Office between 1987 and 1992.
In its decision dated September 30, 1997, the agency dismissed
complainant's complaint due to untimely EEO Counselor contact. The
agency stated that complainant's EEO Counselor contact with regard to
the positions complainant applied from 1991 to 1995 was untimely since
initial EEO Counselor contact for the class complaint was February 16,
1996. The agency noted that the position for which complainant applied
in 1996 was canceled and no one was selected.
In EEOC Appeal No. 01981036, the Commission found that the agency did
not provide evidence showing the specific date of complainant's EEO
Counselor contact. Specifically, the Commission found that the agency
failed to submit any evidence to show whether complainant's EEO Counselor
contact was within the requisite time limit after the dismissal of the
class complaint. Thus, the Commission vacated the agency's decision
and remanded the case to the agency for further processing.
On this request, the agency contends that it considered February 16,
1996, the date complainant's class agent contacted an EEO Counselor with
regard to the class complaint, as complainant's EEO Counselor contact with
regard to the instant complaint. The agency, reiterating the arguments
previously made, contends that complainant's EEO Counselor contact
with regard to the alleged claims, which occurred in or prior to 1995,
was untimely. However, the agency fails to provide any evidence in the
record of its contended initial EEO Counselor contact date of February
16, 1996. The agency, for instance, has failed to provide in the record
a copy of the class complaint's EEO Counselor's Report indicating the
initial contact date. Therefore, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. In addition,
it is noted that the Commission previously made an error by indicating
the timeliness of the EEO Counselor contact was based on the date that
complainant was notified of the class complaint's dismissal, instead
of the date of initial EEO Counselor contact for the class complaint.
Based on the foregoing, the decision in EEOC Appeal No. 01981036 remains
the Commission's final decision with a modified order, accordingly, as
set forth below. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
ORDER
The agency is ordered to supplement the record with evidence as to the
date complainant's class agent contacted an EEO Counselor with regard
to the class complaint. Based on the foregoing, the agency is ordered
to determine whether complainant's EEO Counselor contact with regard to
her individual complaint was timely, and issue a notice of processing
and/or a new final decision within thirty (30) calendar days of the date
this decision becomes final.
A copy of the notice of processing and/or final decision must be sent
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 5, 2001
__________________
Date