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had voluntarily withdrawn.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
2
0120092433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092433