01a55195
08-11-2005
Samuel M. Johnson, Jr., Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.
Samuel M. Johnson, Jr. v. Department of Housing and Urban Development
01A55195
August 11, 2005
.
Samuel M. Johnson, Jr.,
Complainant,
v.
Alphonso Jackson,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A55195
Agency No. EEO 05 032
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the
same claim that is pending before or has been decided by the agency or
the Commission. In a complaint dated December 6, 2004, the complainant
claimed that he was subjected to discrimination based on his disabilities
when he was not selected for the position of Equal Employment Opportunity
Specialist, under vacancy announcement 06-MSR-2002-0050z.
In Samuel Johnson, Jr. v. Department of Housing and Urban Development,
EEOC Appeal No. 01A33899 (December 8, 2003), the Commission affirmed
the agency's prior dismissal, for failure to timely seek EEO counseling,
of the above claim by the complainant.
On appeal, the complainant appears to argue that the June 20, 2005 FAD
incorrectly ruled on the wrong claim. He appears to argue that the
FAD ruled on his claim that he was not selected for the position of
Equal Employment Opportunity Specialist, under vacancy announcement
06-DEU-2002-00292, but inadvertently recited vacancy announcement
06-MSR-2002-0050z instead of 06-DEU-2002-00292. A close reading of
the FAD, however, shows that while it discussed vacancy announcement
06-DEU-2002-00292, it did so to give background, and did not rule on
that claim.<1>
The FAD correctly found that the complainant's complaint states the
same claim that is pending before or has been decided by the agency or
the Commission. Accordingly, the agency's final decision dismissing the
complainant's complaint dated December 6, 2004 is affirmed.<2>
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 (S0900)
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 (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
August 11, 2005
__________________
Date
1EEOC Appeal No. 01A33899 ruled on three claims: (1) the complainant
not being selected under vacancy announcement 06-MSR-2002-0050z, (2)
his not being selected under Schedule A for the positions at issue, and
(3) his not being selected under vacancy announcement 06-DEU-00292.
EEOC Appeal No. 01A33899 affirmed the agency's dismissal of claims 1
and 2, and reversed the agency's dismissal of claim 3, remanding it for
an investigation.
2The complainant also filed a request to reconsider the decision in
EEOC Appeal No. 01A33899, regarding claims 1 and 2 recited therein.
That request has been docketed as EEOC Request No. 05A51106, and is
pending.