0520120248
12-06-2012
Joseph J. Folwarczny, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Joseph J. Folwarczny,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520120248
Appeal No. 0120110135
Agency Nos. HS-08-CBP-008762-120132
HS-09-CBP-001744-120102
DENIAL
The Agency timely requested reconsideration of the decision in Joseph J. Folwarczny v. Department of Homeland Security, EEOC Appeal No. 0120110135 (January 6, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed EEO complaints in which he alleged that the Agency subjected him to unlawful discrimination on the bases of race (Caucasian), sex (male), disability, and in reprisal for prior EEO activity when:
1. On or about March 15, 2007, management removed Complainant's weapon and failed to restore it;
2. Complainant learned on April 19, 2007, that an internal investigation had been opened and, as of the date of his complaint, management would still not specify the nature of allegations raised against Complainant;
3. On May 21-22, 2008, management issued Complainant a letter of suspension;
4. On June 4, 2008, Complainant received a letter advising him of the option to take disability retirement, resign, or take another position;
5. On July 9, 2008, management reassigned Complainant to the airport;
6. On an undisclosed date, management denied his request for official time to complete his statement in a prior EEO complaint filed on March 6, 2008;
7. On October 28, 2008, the Agency terminated Complainant's employment;
8. On October 28, 2008, the Port Director (PD) compensated Complainant for four hours of work rather than eight hours;
9. On October 28, 2008, the Agency did not follow proper separation procedures by removing Complainant without providing him with a Standard Form 2809, Notice in Change of Health Benefits Enrollment, which provided for the continuation of health benefits;
10. After Complainant's removal, the Agency failed to report his separation to the Thrift Savings Plan (TSP), rendering him unable to withdraw funds from his TSP account; and
11. In December 2008, the Agency provided incorrect and/or conflicting information, causing a denial of Complainant's unemployment benefits.
The Agency dismissed claims 1, 3, 4, and 5 on the basis that these matters were initiated by untimely EEO Counselor contact. The Agency dismissed claims 2 and 11 on the basis that these matters failed to state a claim because they were collateral attacks on the proceedings of other forums. The Agency dismissed claim 6 on the basis that this matter expressed dissatisfaction with the processing of Complainant's EEO complaint. Additionally, the Agency found that Complainant withdrew claim 7. The Agency accepted claims 8, 9 and 10 for investigation and found that Complainant failed to prove that he was subjected to unlawful discrimination with respect to these claims.
In our previous decision, the Commission affirmed the Agency's determination with respect to all of Complainant's claims, except claim 6. Specifically, the Commission found the Agency improperly dismissed claim 6 because this matter involved a claim that the Agency denied Complainant's request for a reasonable amount of official time. Consequently, the Commission remanded claim 6 to the Agency so that it could contact Complainant to clarify and support his claim that he was denied official time. The Commission further ordered the Agency to issue a decision with appeal rights on whether Complainant was denied a reasonable amount of official time.
In its request for reconsideration, the Agency maintains that claim 6 should now be dismissed on the basis that it was initiated by untimely EEO Counselor contact. In response, Complainant reiterates the arguments he raised about the merits of his complaint during the investigation and on appeal.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
For the first time, in its request for reconsideration, the Agency maintains that claim 6 was initiated by untimely EEO Counselor contact. However, we find that the Agency has waived timeliness as a basis for dismissal in this case because the Agency did not raise timeliness as a basis for dismissal in its final decision. See McGrady v. Health and Human Servs., Appeal No. 01985084 (Sept. 4, 2001) (holding that an agency waives timeliness arguments when not addressed in final decision). Moreover, we find that our previous decision properly reversed the Agency's dismissal of claim 6 on the grounds that it expressed dissatisfaction with the EEO process and remanded this matter to the Agency as a claim that the Agency denied Complainant a reasonable amount of official time. Further, Complainant's response has not shown that our previous decision was clearly erroneous or will have a substantial impact on the policies, practices, or operations of the Agency.
Consequently, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120110135 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ORDERED to take the following actions:
1. Within 15 calendar days of the date of this decision, the Agency shall contact Complainant to clarify his claim that he was denied official time by providing details of the alleged denial including when it happened and who denied official time. Complainant shall also provide any evidence in support of his claim. Complainant must provide this information to the Agency within 15 calendar days.
2. Thereafter, within 45 calendar days of the date of this decision, the Agency shall issue a decision, with appeal rights to the Commission, as to whether Complainant was denied a reasonable amount of official time regarding the matters raised in his claim. If the Agency determines that Complainant was denied a reasonable amount of official time, it shall restore any annual leave that Complainant may have used in order to develop his EEO complaint and issue him a check for its value as he is no longer employed by the Agency.
3. A copy of the Agency's decision must be submitted to the Compliance Officer as referenced herein.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 (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
December 6, 2012
Date
2
0520120248
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120248