0120120249
10-26-2012
Victor M. Flores, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Victor M. Flores,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120120249
Agency No. HS-CBP-01380-2011
DECISION
Upon review, we find that the Agency's decision dated September 14, 2011, dismissing Complainant's complaint for stating the same claim that had previously decided by the Agency is proper pursuant to 29 C.F.R. �1614.107(a)(1). For the following reasons, we AFFIRM the Agency's decision.
BACKGROUND
In his complaint, dated July 1, 2011, Complainant alleged discrimination based on race (Hispanic) when on May 23, 2011, management denied his request for retroactive GS-12 back pay covering the period of June 21, 2009, to June 20, 2010. The Agency stated that on November 13, 2009, Complainant previously filed a prior complaint, Agency No. HS-10-CBP-000241, alleging the same claim.
Specifically, the Agency indicated that in his prior complaint, Complainant alleged discrimination based on national origin (Hispanic) when on June 21, 2009, he was reassigned from the position of Air Interdiction Officer (Pilot Trainee), GS-1801-11, with a full performance level of GS-13, to his current position of Aviation Enforcement Office, GS-1801-11, with a full performance level of GS-12. As a remedy in the prior complaint, Complainant sought to be reinstated to GS-12 as of May, 2009, with appropriate back pay. The Agency indicated that on September 8, 2010, an EEOC Administrative Judge (AJ) issued a summary judgment decision finding no discrimination concerning the prior complaint. Subsequently, on September 24, 2010, the Agency issued its final order adopting the AJ's decision. Complainant appealed that decision and the matter is pending under EEOC Appeal No. 0120110638 at this time.
ANALYSIS AND FINDINGS
Upon review, we find that the Agency properly found that the instant complaint states the same claim that Complainant raised in his prior complaint which has been previously decided by the Agency and is pending in our office under EEOC Appeal No. 0120110638. In the instant complaint, Complainant alleged that he was denied GS-12 pay for the period of April/June, 2009, to June 20, 2010. The record indicates that Complainant's prior complaint, Agency No. HS-10-CBP-000241, involved the same claim, i.e., the denial of GS-12 pay and his appropriate back pay from May, 2009. On appeal, Complainant does not proffer any evidence otherwise.
CONCLUSION
Accordingly, the Agency's decision dismissing Complainant's complaint is AFFIRMED.
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
10/26/12
__________________
Date
2
0120120249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120120249