_________________, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 16, 2005
05a50551 (E.E.O.C. Mar. 16, 2005)

05a50551

03-16-2005

_________________, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


_________________ v. Department of Homeland Security

05A50551

March 16, 2005

.

_________________,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Request No. 05A50551

Appeal No. 01A45992

Agency Nos. L-012-W022 & I-02-WO78

Hearing No. 340-2003-3313X

DENIAL

_________________ (complainant) timely requested reconsideration

of the decision in _________________ v. Department of Homeland

Security, EEOC Appeal No. 01A45992 (January 11, 2005). 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). However, we

remind complainant that a �request for reconsideration is not a second

appeal to the Commission.� Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999), at 9-17.

In her underlying complaint, complainant alleged that the agency

discriminated against her, in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq., on the bases of race (African-American)

and disability when: (1) she was removed from her position during her

probationary period; (2) she was not selected for a Immigration Inspector

and Detention Enforcement Officer; and (3) she was not selected for

a Immigration Inspector position. An EEOC Administrative Judge (AJ)

issued a decision without a hearing finding that there were no genuine

issues of material fact in dispute, and that complainant failed to

show that the agency's actions were motivated by discriminatory animus.

The agency's final order adopted the AJ's finding of no discrimination,

and on appeal the Commission affirmed the agency's final order.

In support of her request for reconsideration, complainant submitted a

brief addressing, in part, the same issues that she made in her appeal.

Specifically, complainant alleged that she was never allowed to provide

documentation or an argument for her case due to the fact that the AJ's

office was sending all correspondence to an erroneous address. While

complainant argued that the all correspondence was sent to an erroneous

address, there is nothing in the record indicating that complainant

notified the agency or the AJ's office of a change in her address.

After reconsidering 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. 01A45992 remains the

Commission's final 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 (P0900)

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 (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:

March 16, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations