0520110102
03-18-2011
Patricia Jackson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Patricia Jackson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Request No. 0520110102
Appeal No. 0120102095
Agency No. HS-06-CIS-000503
DENIAL
On October 19, 2010, Complainant timely requested that the Commission
reconsider its decision in Patricia Jackson v. Department of Homeland
Security, EEOC Appeal No. 0120102095 (September 27, 2010) (Jackson I).
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).
In Jackson I, the Commission found that the Agency properly dismissed
Complainant's settlement breach allegation as untimely. Specifically,
the Commission found that on March 6, 2010, Complainant alleged that
the Agency was in breach of a settlement agreement (SA) into which the
parties had entered in 2006, and had been since July 24, 2006, and on a
continuous basis from that date through 2009. The relevant portion of
the agreement that Complainant alleged was breached is as follows:
In exchange for [Complainant's agreement to dismiss her [formal EEO
complaint] the Agency has agreed to do the following:
(2)(b) [Agency] will reestablish [Complainant's home access to either
[the Agency's] CCMail or Outlook email exchange.
In other words, Complainant alleged that the Agency failed to provide
her with access to the computer systems she needed to complete her
work at home and in the office. The Commission ruled that because
our regulations require that settlement breach allegations be raised
before the EEO Director within 30 days of when a complainant knew or
should have known of the alleged noncompliance, and that Complainant
raised her claim in March 6, 2010, on a breach that she stated began
"shortly after the case was settled in 2006," her breach allegation
was properly dismissed by the Agency. See Jackson I at 2-3. We note
that the settlement agreement at issue contained a provision informing
Complainant that any suspected breach should be reported in writing to
the EEO Director within 30 days of the date of the breach.
In her request to reconsider, Complainant submitted precisely the same
brief that she provided in support of her appeal. In that brief, she
argued that her complaint involved "a continuous situation [of harassment]
that management has chosen to overlook, turned their backs on and refused
to deal with." See Complainant's April 19, 2010, Brief in Support
of Appeal; see also Complainant's October 18, 2010, Brief in Support
of Request for Reconsideration. Those arguments were considered prior
to our issuance of Jackson I and will not be reconsidered. We remind
Complainant that a "request for reconsideration is not a second appeal to
the Commission." See Equal Employment Opportunity Management Directive
110 for 29 C.F.R. Part 1614 (EEO MD-110) (Nov. 9, 1999), Chap. 9.
There is no evidence in the record that shows our previous decision
involved a clearly erroneous interpretation of the facts.
Further, we note that Complainant retired from the Agency on October
31, 2009, and that she raised her new allegations of discrimination
and harassment on March 6, 2010, within her settlement breach
allegation. Even though the Commission's regulation found at 29 C.F.R. �
1614.105(a)(1) states that allegations of discrimination should be brought
to the attention of an EEO Counselor within 45 days of a matter alleged
to be discriminatory, our decision in Jackson I gave her the option to
raise those allegations within 15 days of receiving of that decision.
Because that decision is not yet final in light of Complainant's
reconsideration request, we again state that if Complainant wishes to
pursue the new allegations of discrimination raised in her breach notice,
she should contact an EEO Counselor at the Agency within fifteen (15)
days of the date she receives this decision.
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. The decision in EEOC Appeal No. 0120102095 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 (P0610)
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 (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
March 18, 2011
Date
2
05-2011-0102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110102