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