01981009
11-25-1998
Sharon L. White, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Sharon L. White v. Department of Housing and Urban Development
01981009
November 25, 1998
Sharon L. White, )
Appellant, )
) Appeal No. 01981009
v. ) Agency No. FW 95-04
) Hearing No. 220-96-8297X
Andrew M. Cuomo, )
Secretary, )
Department of Housing )
and Urban Development, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issues presented are whether appellant proved, by a preponderance
of the evidence, that:
(1) she was discriminated against because of her race (Black) when
she was placed in an AWOL status on August 8, 1990, for two hours and
on August 9, 1990, for eight hours when she refused to sign for leave
after being absent from her assigned duty station without permission,
while other employees under the same circumstances were not required to
submit a leave slip;
(2) she was reprised against (prior EEO activity) and harassed when she
was denied a promotion, had leave restrictions imposed, was required
to document her leave when her mother was ill, was issued a letter of
proposed suspension, and was constructively discharged from her position
as a Closing Clerk on August 21, 1990; and
(3) she was discriminated against because of sex (female) and reprisal
(prior EEO activity) when she was harassed by the Office Manager and
Deputy Director when these individuals accused her of unauthorized use
of government property, and the police were called to escort her out of
the building during her attempt to file an EEO complaint.
On appeal, appellant contends that the agency's failure to process her
complaint in a timely manner seriously hampered her ability to present
a prima facie case because three of her most important witnesses died
and other prospective witnesses resigned from the agency before the
investigation and hearing took place. In response, the agency explained
that appellant had mailed her formal EEO complaint to an authorized
non-agency federal government official for forwarding to the agency
EEO office, but the official apparently thought the complaint was
a courtesy copy and destroyed it. The official was not under the
authority or control of the agency. When appellant finally inquired
of the agency about her complaint, the EEO Counselor's Report had also
been destroyed, and it took several years of correspondence to establish
that the complaint had indeed been filed on September 5, 1990, and that a
complaint investigation should go forward. The agency then had appellant
refile her complaint on October 24, 1994, and declared it timely.
During the relevant time, appellant was employed by the agency as
a Closing Clerk, GS-04, but resigned her position on August 21,
1990, because of severe stress allegedly placed on her by management
officials. Believing that she was a victim of discrimination, appellant
sought EEO counseling and later filed a formal EEO complaint dated
September 9, 1990, wherein she alleged that she had been discriminated
against when the above three agency actions occurred.
The agency complied with all procedural and regulatory prerequisites,
and on August 7, 1997, the EEOC Administrative Judge (AJ) issued a
Recommended Decision (RD) finding no discrimination or harassment based
on race, sex, or reprisal, and that appellant failed to establish a
prima facie case for each one of her allegations. Subsequently, the
agency adopted the RD as its own final decision.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
In particular, we note that appellant's Motion for Summary Judgement on
the grounds that the agency's inordinate delay in investigating her case
had damaged her ability to present a prima case was denied by the AJ.
He pointed out that the purpose of discovery at the hearing was "to
supplement the record by addressing deficiencies found by either party."
Thus, the AJ determined that the hearing would give appellant the
opportunity to supplement the record with enough evidence to prove her
case and therefore denied her Motion for Summary Judgment. The AJ has
broad discretion in the conduct of a hearing, and we find that the AJ
did not abuse his discretion in the matter. See 29 C.F.R. �1614.109(c).
We also note that the agency was not at fault for the delay in the
investigation, since the authorized official who received and then
destroyed the original complaint in 1990 was not an agency employee
or under its authority. Thus, the agency never accepted the complaint
in 1990 and did not violate the relevant regulation at that time, 29
C.F.R. �1613.606. It is accordingly the decision of the EEOC to AFFIRM
the agency's final decision.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
Nov 25, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations