0520110558
02-28-2013
John D. Callaway, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
John D. Callaway,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520110558
Request No. 0520100416
Appeal No. 0120092264
Agency No. HS-09-CBP-003463
DENIAL
Complainant timely requested reconsideration of the decision in John D. Callaway v. Department of Homeland Security, EEOC Appeal No. 0520100416 (April 8, 2011). 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).
On March 2, 2009, Complainant filed an EEO complaint on the bases of race, national origin, color, and age when, on July 19, 2008, the Agency rescinded its conditional offer of employment. The Agency dismissed Complainant's complaint finding that it failed to state a claim, and for untimely EEO Counselor contact. In EEOC Appeal No. 0120092264 (May 13, 2010), the Commission affirmed the Agency's dismissal on the basis of failure to state a claim, finding that the Commission was precluded from reviewing the validity of the requirement of a security clearance and the substance of a security clearance determination. It did not address the Agency's dismissal for untimely EEO Counselor contact.
Complainant filed a request for reconsideration, which was docketed as EEOC Request No. 0520100416 (April 8, 2011). In that decision, we found that the previous decision should not have analyzed the complaint as a claim of a security clearance denial, but rather as an allegation of discrimination in a suitability determination. We vacated the previous decision, and went on to analyze the Agency's alternative basis for dismissal, the untimely EEO Counselor contact. The previous request for reconsideration decision found that Complainant's contact was untimely, and it upheld the Agency's dismissal on this basis. However, because the original appeal decision had not addressed the dismissal for untimeliness, the parties were given additional rights to request reconsideration.
On May 2, 2011, Complainant filed a second request for reconsideration. He argued that although his initial contact with an EEO Counselor on February 10, 2009, was outside of the 45-day period, the time limits should be tolled because the Agency had not notified him of his EEO rights when it rescinded the offer of employment. He also argued that although he was employed by a different sub-Agency of the Department of Homeland Security (Transportation Security Administration (TSA)), he was unaware of the process for initiating an EEO complaint. He argued that he first made EEO contact with his own employing Agency, and was told that he would have to contact an EEO Counselor at Customs and Border Protection. He did not state on what date he initiated contact with a TSA EEO Counselor, nor did he supply evidence of contact. Complainant also argued that he delayed contacting an EEO Counselor because he had requested information of the Agency which would demonstrate the reasons for the withdrawal of his employment offer.
The Agency submitted a statement in opposition to Complainant's request for reconsideration. It argued that Complainant's request should be denied because as a supervisor at TSA, Complainant should have had knowledge of the time limits for initiating the filing of an EEO complaint. It urged the Commission to deny Complainant's request for reconsideration.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Complainant does not deny that he did not contact an EEO counselor at the Agency until February 10, 2009. He does not supply any evidence of earlier attempts to file any kind of EEO complaint, either with TSA or with other individuals who might logically be connected with the EEO process.
After reviewing 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. 0520100416 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
February 28, 2013
Date
2
0520110558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110558