0520170380
08-24-2017
Bryan Y,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryan Y,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.
Request No. 0520170380
Appeal No. 0120151231
Hearing No. 510-2013-00183X
Agency No. HSHQ215392012
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120151231 (May 4, 2017). 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(c).
Complainant filed an EEO complaint alleging that he was discriminated against based on sex (male) and reprisal when: (1) from 2008 through 2011, Complainant and other employees were subjected to sexually offensive conduct between the former District Commander and a subordinate employee (2) on November 15, 2011, Complainant was issued a Letter of Counseling; (3) on November 18, 2011, Complainant's request for a transfer to the Fort Lauderdale Court Facility was denied; and (4) on December 20, 2011, the former District Commander entered into Complainant's secure office, removed spiral notebooks, and subsequently attempted to file criminal charges against him.
The matter was adjudicated by an EEOC Administrative Judge, who issued a decision by summary judgment in favor of the Agency, determining Complainant failed to prove he was discriminated against as alleged. Complainant appealed.
In EEOC Appeal No. 0120151231, we determined that Complainant's appeal was untimely filed and it was dismissed. The decision concluded that evidence showed that Complainant's attorney received the Agency's final order adopting the Administrative Judge's decision on January 12, 2015, but did not file his appeal until February 21, 2015, beyond the 30-day limitation period.
In his request for reconsideration, Complainant expresses his disagreement with our previous dismissal of his appeal and again argues, as he did in his original appeal, that his attorney did not receive the Agency's final order until January 23, 2015, and therefore, his February 21, 2015 appeal was timely filed. This argument has already been squarely rejected in our previous decision based on evidence of record consisting of a certified mail return receipt showing that the Agency's final order was signed for by an individual at Complainant's attorney's address of record on January 12, 2015. We note that Complainant and his attorney were provided with a copy of this certified mail return receipt when it was attached as Exhibit A to the Agency's brief submitted during the original appeal.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120151231 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 24, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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