01a53301_r
12-19-2005
Janice Burgos, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Janice Burgos v. Department of Homeland Security
01A53301
December 19, 2005
.
Janice Burgos,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A53301
Agency No. 05-034C/05-4052
DECISION
Complainant appeals to the Commission from the agency's March 14, 2005
decision dismissing complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for raising the same claim pending before or already
decided by the agency or Commission. According to the decision,
complainant alleges discrimination on the bases of disability and
reprisal when on November 18, 2004, her weapon, weapon-related gear,
and ammunition were removed and she was assigned different duties; and
by letter dated January 5, 2005, she was notified that she was medically
unfit for full duty and that efforts would be made to reassign her to
another position.
The agency argues that complainant previously filed a complaint on the
same matter which resulted in a settlement agreement. Specifically, the
agency argues that complainant filed a complaint alleging discrimination
on the bases of disability and reprisal when in March 2003, she was not
granted reassignment to a job location near her home and consequently was
denied reasonable accommodation; and on November 26, 2003, her assignment
to the Cargo Clearance Center in the Port of Miami was revoked.
On March 3, 2004, the parties entered into a settlement agreement to
resolve complainant's previously filed complaint. The agency argues
that the parties, pursuant to the settlement agreement agreed to: (1)
grant complainant temporary reassignment to Port Everglades, Florida,
pending the results of a Fitness for Duty (FFD); (2) consult with
complainant's physician for input prior to reaching the final result on
the FFD evaluation; (3) temporarily place complainant on an 8 a.m. to
4 p.m. shift from Monday to Friday in Passenger Processing pending the
final results of the FFD; (4) honor previously approved leave requested
by complainant for fiscal year 2004; and (5) submit necessary medical
documents to the Public Health Physician.
Complainant later alleged breach of the settlement agreement arguing
that the agency breached the agreement when in June and August 2004,
while undergoing a Fitness for Duty examination, she was not given ample
time to consult with her orthopedic surgeon prior to the second portion
of the exam, and she re-injured her shoulder because the examination
exceeded the physical requirements of the Legacy Customs Inspector
position, which resulted in having her weapons removed on November 18,
2004 because she was found unfit for duty.
The agency, thus, argues that the instant complaint is the same as the
matter raised in the previously filed complaint. We find, however,
that the instant complaint is an allegation of a subsequent act of
discrimination which is permitted pursuant to 29 C.F.R. � 1614.504(c).
Therefore, we find complainant's complaint was improperly dismissed.
The agency's decision dismissing complainant's complaint is REVERSED
and we REMAND the matter for further processing in accordance with this
decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 19, 2005
__________________
Date