0120102541
09-21-2010
Larry L. Price, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Larry L. Price,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120102541
Agency No. HUD-00009-2010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 19, 2010, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed, with a caveat, pursuant to 29 C.F.R. � 1614.107(a)(8).
BACKGROUND
On October 13, 2009, Complainant (not an employee of the Agency) initiated EEO contact alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when it failed to respond to his notice of insufficient reports of investigation to the Agency EEO Director, for complaint agency numbers HUD-00084-2008 and HUD-00104-2008. Complainant informed the EEO Director in a Notice dated September 15, 2009. Complainant subsequently filed a formal complaint reiterating the same claim.
In its April 19 final decision, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(8), for alleging dissatisfaction with processing of previously filed complaints. The instant appeal from Complainant followed. On appeal, Complainant stated that investigators prepared investigations that were insufficient, biased in favor of the Agency, and failed to address his claims. In opposition to Complainant's appeal, the Agency stated that Complainant requested a hearing before an EEOC Administrative Judge (AJ) prior to informing the EEO Director of investigation deficiencies, which placed jurisdiction for the complaint with the EEOC AJ.
ANALYSIS AND FINDINGS
Complainant's claim, which concerns the processing of two previously-filed complaints (HUD-00084-2008 & HUD-00104-2008) does not state an independent claim. Thus, it was appropriate for the agency to dismiss this claim. However, EEOC Management Directive 110 (MD-110), Chapter 5, Sect. III(F) and IV(D), state that allegations of dissatisfaction with the processing of a pending complaint must be referred to the agency official responsible for the quality of complaint processing. That official should attempt to resolve the issues raised, and must add a written statement of complainant's concerns and the agency's attempts to reconcile them to the record of the underlying complaint for consideration as to whether improper processing had a "material effect" on the case when there is an adjudication of the merits of the underlying complaint by the agency or the EEOC.
In this particular matter, Complainant requested a hearing for Agency # HUD-00084-2008, which was docketed as EEOC Hearing No. 570-2010-00129X, so that matter is within the jurisdiction of an Administrative Judge who "is fully responsible for processing it." MD-110, Chapter 5, Sect. III(E); Chapter 7, Sect. III. Conversely, we do not have record of a docketed request for a hearing for HUD-00104-2008. So, to the extent that the Agency has not already done so, we order them to respond to Complainant's concerns for HUD-00104-2008 in accordance with MD-110, Chapter 5, Sect. III(F) and IV(D).
Based on the above, we AFFIRM the Agency's dismissal due to the insufficiency of the claim, but ORDER the Agency to act consistent with this decision and the ORDER below.
ORDER
To the extent that the Agency has not already done so, we order it to respond to Complainant's deficiency concerns for HUD-00104-2008 in accordance with MD-110, Chapter 5, Sect. III(F) and IV(D).
A copy of documentation showing compliance with this Order must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 21, 2010
__________________
Date
2
0120102541
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102541