0120082835
03-24-2009
Charlie Atkinson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Charlie Atkinson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120082835
Agency No. HS-07-CBP-000986-130105
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated June 14, 2007, 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. We find
that the claim was properly dismissed.
In a complaint filed on January 5, 2007, complainant alleged that the
agency subjected him to harassment on the basis of reprisal for prior
protected EEO activity. To support his claim of harassment, complainant
alleged that the agency: (1) failed to provide an effective EEO process
or relief during his prior complaint processing, (2) failed to issue a
final decision for agency numbers 04-128C/04-4121, (3) on September 28,
2006, failed to provide him counseling or a formal complaint form for
agency number HS-06-CBP-004622-130125, (4) allowed its counsel to make
false statements in an appellate brief for a prior EEOC appeal, (5)
on March 7, 2005, issued complainant a letter of reprimand, (6) allowed
a Port Director (S1) to make false statements against complainant in an
EEO affidavit and for support of personnel actions against complainant,
and (7) did not hold S1 to the same standards of conduct and discipline
it applied to complainant.1
In its June 14 final decision, the agency dismissed complainant's claim
pursuant to 29 C.F.R. �� 1614.107(a)(1) & (2) for failure to state a
claim, previously raising the same claim that is or has been before
the agency or Commission, and untimely EEO contact. Specifically,
the agency stated that all supporting incidents alleged, except (5),
fail to render complainant as one who suffered a present harm or loss
with respect to a term, condition, or privilege of employment for
which there is a remedy, i.e., aggrieved. Further, the agency stated
that the incidents alleged are not sufficiently severe or pervasive to
alter the conditions of complainant's employment. The agency noted that
most of complainant's allegations are based on dissatisfaction with the
processing of a previously filed complaint. Lastly, the agency found
that complainant initiated EEO contact on December 8, 2006, which renders
said contact untimely for the disciplinary action in (5) - letter of
reprimand in March 2005. The instant appeal from complainant followed.
EEOC Regulation 29 C.F.R. 1614.107(a)(8) provides that an agency
shall dismiss claims alleging dissatisfaction with the processing of
a prior complaint. Dissatisfaction with the EEO process must be raised
within the underlying complaint, not as a new complaint. See Management
Directive 110 (MD-110) 5-23, 5-25 to 5-26 (Nov. 9, 1999). Therefore,
the agency correctly dismissed claims (1) - (4) and (6), as allegations
of dissatisfaction with the processing of a prior complaint.
With regard to claims (5) and (7), they were also properly dismissed
pursuant to 29 C.F.R. 1614.107(a)(1) as claims that have already been
decided by the agency or EEOC. Claim (5) was addressed by a prior agency
complaint and, ultimately, Atkinson v. Dep't of Homeland Security, EEOC
Appeal No. 0120065299 (June 20, 2008). Claim (7) was previously raised
in Agency Case No. HS-06-CBP-004622-130125, and a final agency decision
was issued on December 20, 2006.
Accordingly, for the reasons stated above, the final agency decision
dismissing the complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
March 24, 2009
__________________
Date
1 We note that complainant also alleged the basis of sex (male) as to
incident (7).
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0120082835
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013