05970692
03-04-1999
Patricia A. Dumas, Appellant, v. Andrew Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Patricia A. Dumas v. Department of Housing and Urban Development
05970692
March 4, 1999
Patricia A. Dumas, )
Appellant, )
) Request No. 05970692
v. ) Appeal No. 01950756
) Agency No. SF 93-02;
Andrew Cuomo, ) SF 93-14
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
In a document stamped as received on April 16, 1997, the Department of
Housing and Urban Development (hereinafter referred to as the agency)
timely initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in Patricia A. Dumas v. Andrew
Cuomo, Secretary, Department of Housing and Urban Development, EEOC Appeal
No. 01950756 (March 11, 1997). The agency received the decision on March
14, 1997. See 29 C.F.R. �1614.604(b). EEOC regulations provide that the
Commissioners may, in their discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
After a review of the agency's request for reconsideration, the
appellant's reply thereto, the previous decision, and the entire record,
the Commission finds that the agency's request fails to meet any of the
criteria of 29 C.F.R. �1614.407(c).<1> It is therefore the decision of
the Commission to deny the agency's request. The decision in EEOC Appeal
No. 01950756 (March 11, 1997) remains the Commission's final decision.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration. The agency is directed to
comply with the Order,
ORDER (A1092)
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
A. Within thirty (30) calendar days of receipt of this decision, the
agency shall acknowledge to appellant that it has received the remanded
allegations.
B. The agency shall investigate appellant's complaints on all bases and
issues alleged by appellant in her complaints, i.e., race, color, age,
and reprisal, pursuant to 29 C.F.R. �1614.108 et seq. The investigation
shall be completed within ninety (90) days of receipt of this decision.
C. Thereafter, the agency shall provide appellant with a copy of the
investigative file and also shall notify the appellant of the right
to request a hearing within thirty (30) calendar days of receipt of
the notice of right to request a hearing. If the appellant does not
request a hearing within the 30 day period, the agency shall issue a
final agency decision within sixty (60) calendar days of the end of the
30 day period.<2>
D. A copy of the agency's notice transmitting the investigative file
to the appellant (or a copy of the final agency decision, if a hearing
was not requested) must be submitted to the Compliance Officer, as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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:
March 4, 1999
Date Frances M. Hart
Executive Officer
1 Because appellant sought compensatory damages in relief, her complaints
remain viable and may not be dismissed for mootness, until the agency
either pays her compensatory damages properly due or demonstrates that
appellant is not entitled. Salazar v. Department of Justice, EEOC
Request No. 05930316 (February 9, 1994).
2 Because appellant's initial consideration of whether to request a hearing
or a final agency decision was based on an imprecise investigative record,
we require the agency to repeat its offer of a hearing or final agency
decision so that appellant may ground her options on a full and complete
record.