0120133020
03-05-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120133020
Agency No. HS-TSA-00751-2013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 24, 2013, 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Transportation Security Officer assigned at the Philadelphia International Airport in Philadelphia, Pennsylvania.
On April 8, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior EEO activity when:
1. on January 9, 2013, management provided false testimony at Complainant's EEOC hearing; and
2. on unspecified dates, management failed to preserve valuable electronic data pertaining to Complainant's e-mail communications and time and attendance records required for the EEOC hearing.
The Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(8), for alleging dissatisfaction with the processing of a prior complaint. Specifically, the Agency determined that the formal complaint focused on Complainant's dissatisfaction with the processing of his prior EEO complaint (Agency No. HS-TSA-04920-2008). Specifically, Complainant stated that the Agency provided false testimony at his EEOC hearing and the Agency's failure to preserve valuable electronic data.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. See EEOC - Management Directive 110 (as revised Nov. 9, 199) 5-23, 5-25 to 5-26.
On appeal, Complainant provides extensive argumentation asserting that the Agency's dismissal was improper. Complainant requests that the Commission reverse the Agency's dismissal of the instant complaint and consolidate it with his prior complaint and "remand both cases with instructions for additional discovery and a supplemental hearing where the agency will be required to address the amended claims of retaliation based upon false testimony of [two named Agency officials] and produce any documents allegedly supporting the allegedly baseless and false testimony of [two named Agency officials]." However, in his formal complaint, Complainant plainly presents his case as regarding his EEOC hearing for a prior complaint in which Agency management provided false testimony and failed to preserve valuable electronic data. We find that the instant formal complaint clearly concerns Complainant's dissatisfaction with the processing of his prior complaint. Therefore, we find that the Agency properly dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(8).
The Agency's final decision to dismiss the formal complaint for the reason stated herein 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
March 5, 2014
__________________
Date
2
0120133020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120133020
5
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