0120180725
05-10-2018
Dante B,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dante B,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120180725
Agency No. C18-DHS-WFO-10812
DISMISSAL
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission). Upon review of the briefs provided by Complainant, he has alleged discrimination from 2002 to his removal from his Information Technology Specialist position effective September 12, 2007. In addition, Complainant claimed that the Agency subjected him to discrimination in March 2010 regarding his retirement pension. Complainant claimed that the Agency's alleged discrimination has continued to impact him. As such, he contends that his claim of a continuing violation overrides any statute of limitations for bringing forward a claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. As such, he requests that the Commission address his claims of discrimination and harassment as they are not time barred.
However, a review of the record shows that Complainant had previously raised his claims of discrimination with the Agency in an EEO complaint, namely Agency No. HS-HQ-17853-2010. The Agency dismissed Complainant's EEO compliant by decision dated February 26, 2011. Complainant filed an appeal of the Agency's February 26, 2011 decision to the Commission. In EEOC Appeal No. 0120112430 (April 27, 2012), the Commission upheld the Agency's final decision dismissing Complainant's claims of discrimination pursuant to 29 C.F.R. � 1614.017(a)(2) for untimeliness. Complainant requested reconsideration on the Commission's decision in EEOC Appeal No. 0120112430. In EEOC Request No. 0520120487 (May 17, 2013), the Commission denied Complainant's request to reopen the Commission's decision in EEOC Appeal No. 0120112430. The Commission in EEOC Request No. 0520120487 stated that Complainant had no further right of administrative appeal on the decision by the Commission.
In filing the instant appeal, we find that Complainant is attempting to resurrect his prior EEO Complaint which was dismissed by the Agency. The Agency's dismissal was affirmed by the Commission in EEOC Appeal No. 0120112430 and EEOC Request No. 0520120487. We determine that there is no basis for Complainant's instant appeal. As such, we DISMISS the instant matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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