Michael F. Blair, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionAug 19, 2009
0120092433 (E.E.O.C. Aug. 19, 2009)

0120092433

08-19-2009

Michael F. Blair, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Michael F. Blair,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120092433

Agency No. HS09CBP104464

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 30, 2009, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the

Commission finds that complainant's complaint was properly dismissed

pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim as a

previous complaint.

In a complaint dated April 13, 2009, complainant alleged that he was

subjected to discrimination on the bases of race (African-American),

disability, and age (57) when, on March 9, 2009, he was reassigned from

Passenger Operations to Cargo/Trade Operations, JFK Airport, Jamaica,

New York.

The record indicates complainant initially sought EEO counseling on the

above matter on March 10, 2009 (Agency No. HS-09-CBP-003965-040113).

On appeal, complainant concedes that he tried to get the EEO counselor to

put this informal complaint on hold in order to see the conditions in the

new department and attempt to become accustomed to the new assignment,

but was told it could not be put on hold. Therefore, on March 12,

2009, complainant submitted a document withdrawing his initial informal

complaint. The withdrawal document indicates that it was voluntary and

that complainant understood that "this closes the matters addressed in

my informal complaint identified above in its entirely."

On April 6, 2009, complainant contacted the EEO counselor and attempted to

reinstitute counseling on this same matter. On April 13, 2009 complainant

filed a formal EEO complaint (Agency No. HS-09-CBP-004464). On April 30,

2009, the agency dismissed the new complaint for stating the same claim

as that raised in the March 10, 2009 informal complaint which complainant

had voluntarily withdrawn. The instant appeal followed.

Complainant does not make any new arguments in his appeal. Rather, he

reiterates his statement that he did not realize that he could not re-file

his complaint. Because the matter herein is identical to that raised

in his March 10, 2009 complaint, and because the record indicates that

complainant voluntarily withdrew that earlier complaint, the Commission

affirms the agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(1).

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

August 19, 2009

__________________

Date

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0120092433

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092433