01a54301
11-30-2005
Alberto R. Ontivero, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Alberto R. Ontivero v. Department of Homeland Security
01A54301
11-30-05
.
Alberto R. Ontivero,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A54301
Agency No. ICE-05-H119
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 19, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of national origin (Hispanic) and reprisal for prior EEO
activity when on October 4, 2004, he became aware that in 2002, agency
officials failed to reassign him into Supervisory Criminal Investigator
positions in Denver, Spokane and Seattle by failing to exercise their
authority to direct complainant's placement into the positions or by
declining to approve complainant's rotation into one of the positions.
In a final decision dated April 19, 2005, the agency dismissed the
complaint on the grounds that the matters raised therein were identical
to those raised in a previously filed EEO complaint. Specifically,
the agency contends that the claims raised in the instant complaint were
already addressed in Agency Case No. ICE-04-H037 filed on June 26, 2004.
The agency indicates that in the previously filed complaint, complainant
claimed that the agency failed to rotate him into any of 85 positions
listed on his prioritized overseas rotation list. The agency maintains
that the claims identified in complainant's current complaint regarding
the failure of agency officials to use their authority to place him
into one of three Supervisory Criminal Investigator positions in Denver,
Spokane and Seattle are identical to the issues raised in the previously
filed complaint. In addition the agency explained in its final decision
that although the present complaint contains more detail on the matters
stated in the prior complaint, the present complaint involves essentially
the same agency actions and the same surrounding facts.
On appeal, the complainant maintains that the instant complaint involves
named agency officials not specified in his previous complaint and
different allegations of discrimination. The complainant also provides
a copy of the agency's Notice of Right to File a Complaint regarding his
prior complaint. Therein, the agency identified complainant's allegations
as follows: complainant was subjected to disparate treatment in that he
was not afforded rights provided to other employees in the workplace;
suffered work-related injuries that complainant alleges were mishandled
by the agency; his overseas rotation was delayed; his clothing was
placed inside a metal cabinet and he was not selected for 85 positions
for which he applied.
The regulations set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
Furthermore, it has long been established that �identical� does not
mean �similar.� The Commission has consistently held that in order for
a complaint to be dismissed as identical, the elements of the complaint
must be identical to the elements of the prior complaint in time, place,
incident, and parties. See Jackson v. Department of the Air Force,
EEOC Appeal No. 01955890 (April 5, 1996) rev'd on other grounds EEOC
Request No. 05960524 (April 24, 1997).
In the final agency decision, the agency determined that the matter
addressed in the instant complaint was raised in a previously filed Agency
Case No. ICE-04 H037 filed on June 26, 2004. However, the evidence of
record indicates that the claims raised in complainant's prior complaint
are not identical to those raised in the instant complaint. Accordingly,
because the record before the Commission does not contain evidence of a
prior formal complaint addressing matters identical to those identified
in the instant EEO complaint, we REVERSE the agency's dismissal, and
REMAND the instant complaint to the agency for further processing,
consistent with the Order below.
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
____11-30-05______________
Date