05a00332
04-14-2000
Irene Dais, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Irene Dais v. Department of Housing and Urban Development
05A00332
April 14, 2000
Irene Dais, )
Complainant, )
)
v. ) Request No. 05A00332
) Appeal No. 01992973
Andrew M. Cuomo, ) Agency No. CR 98 01
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On January 31, 2000, the agency initiated a request to the Equal
Employment Opportunity Commission (EEOC) to reconsider the decision
in Dais v. Department of Housing and Urban Development, EEOC Appeal
No. 05A00332 (December 21, 1999).<1> The Commission, in its discretion,
may grant a party's request to reconsider a decision issued under the
regulation set forth at 64 Fed. Reg 37,644, 37,659 (1999) (to be codified
as 29 C.F.R. � 1614.405(a)), if the party demonstrates that:
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.
64 Fed. Reg 37,644, 37,659 (1999) (to be codified as and hereinafter
cited as 29 C.F.R. � 1614.405(b)).
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
agency's request does not meet the criteria of 29 C.F.R. � 1614.405(b),
and it is the decision of the Commission to deny the agency's request.
The Commission notes that the agency has failed to supply any evidence
that was not available to the agency at the time it rendered its decision
dismissing complainant's complaint. Furthermore, we find that the agency
has failed to persuasively show on appeal that complainant had actual or
constructive notice of the time limit for contacting an EEO Counselor.
In particular, the agency has still failed to submit a copy of any EEO
poster showing the time limit for contacting an EEO Counselor.
The decision of the Commission in EEOC Appeal No. 01992973 remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
April 14, 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.