0120141329
10-08-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120141329
Agency No. HS-CBP-02090-2013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 24, 2014, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Programs Officer/Customs Inspector at the Agency's Headquarters in Washington, D.C.
On August 17, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On September 25, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the race, national origin, age and in reprisal for prior EEO activity when:
he was not selected for the position of Customs Inspector (Program Manager), GS-1890-14, advertised under Vacancy Announcement No. HQOFO/01-005KBS.
The Agency dismissed the formal complaint on the grounds that it states the same claim that was raised in a prior EEO complaint (Agency No. 01-1236), pursuant to 29 C.F.R. � 1614.107(a)(1).1 Specifically, the Agency noted that in the prior formal complaint, Complainant alleged that he was discriminated against on the bases of race, national origin, age and in reprisal for prior EEO activity when from June 2000 to July 2001, he was not selected under seven GS-14 Supervisory Customs Inspector vacancy announcements, including Vacancy Announcement No. HQOFO/01-005KBS. The Agency further noted that in the instant case, Complainant alleged that he was discriminated against on the bases of race, national origin, age and in reprisal for prior EEO activity when on November 29, 2001, he learned that he was not selected for the position of Customs Inspector (Program Manager), advertised under Vacancy Announcement No. HQOFO/01-005KBS.
The Agency also dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(3), on the grounds that Complainant filed a civil action on the same matter raised in the formal complaint. The record reflects that on November 1, 2005, Complainant filed a civil action (identified as Civil Action No. 05-cv-2128-RJL) in the United States District Court for the District of Columbia.
Furthermore, the Agency dismissed the formal complaint on the alternative grounds of untimely EEO Counselor contact, 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on August 17, 2013, which it found to be beyond the 45-day limitation period.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission.
Here, the Agency dismissed the instant formal complaint on the grounds that the matter raised therein is the same matter that was raised in a prior formal complaint, filed on September 12, 2001, Agency Case No. 00-1236, alleging the same claim. The record supports a determination that Complainant had pursued the same matter in a prior complaint.
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
Because we affirm the Agency's final decision on the grounds discussed above, we will not address alternative dismissing grounds (i.e. untimely EEO Counselor contact).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (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
October 8, 2014
__________________
Date
1 The record reflects that in the instant final decision, the Agency inadvertently identified the Agency Number in Complainant's prior complaint as 01-1236 instead of 00-1236.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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