0520090377
08-03-2009
Roosevelt Young, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Roosevelt Young,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520090377
Appeal No. 0120072736
Agency No. HS06TSA002503
DENIAL
Complainant timely requested reconsideration of the decision in Roosevelt
Young v. Department of Homeland Security (TSA), EEOC Appeal No. 0120072736
(March 20, 2009). 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 a formal complaint alleging discrimination when he
was subjected to harassment when:
1. on April 30, 2006, a Letter of Reprimand, issued to complainant on
November 15, 2005, for an offense that occurred on October 21, 2005,
was rescinded and complainant ultimately received a proposed five-day
suspension; and
2. on June 9, 2006, during an internal inquiry, one of complainant's
subordinates was asked questions regarding complainant's sexual
orientation.
In its final decision, the agency dismissed the complaint for failure to
state a claim, finding that complainant failed to allege discrimination
on one or more protected bases. The prior decision affirmed, finding
that complainant failed to clarify the matter after being questioned by
the agency, or in his appeal to the Commission.
In his Request, complainant contends that he cited reprisal as his basis
in conversations with his EEO Counselor, and presents new evidence in
support of his claim. After reconsidering 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, because complainant has failed to present
any argument or evidence that would establish that the prior decision
involved a clearly erroneous interpretation of material fact or law.
Although complainant was on notice as to the reason for the complaint's
dismissal when he initially appealed this matter, he did not clarify
the basis on appeal. Rather, on request for reconsideration,
complainant for the first time submits evidence that he discussed
the basis for his complaint with the EEO Counselor. We note that
a request for reconsideration is not a second form of appeal. E.g.,
Lopez v. Department of Agriculture, EEOC Request No. 0520070736 (August
20, 2007). The Commission generally does not consider evidence presented
for the first time on request for reconsideration absent a showing that
the evidence was not reasonably available during the proceedings below.
See id. Further, we note that despite repeated opportunities to clarify
the basis of his complaint during these proceedings, complainant failed to
do so. Accordingly, we decline to consider the new evidence submitted
by complainant. The decision in EEOC Appeal No. 0120072736 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 3, 2009
Date
2
0520090377
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090377