01a53185
07-28-2005
Emmanuel Henderson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Emmanuel Henderson v. Department of Homeland Security
01A53185
July 28, 2005
.
Emmanuel Henderson,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A53185
Agency Nos. CPB I-03-C040 & 05-4036R
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 8, 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<1> that he was subjected to discrimination
on the basis of race (African-American) when:
He was denied shift hours of 6-2 and 2-10; and
He was required to comply with statutory requirements for overtime;
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7).
The record shows that on November 24, 2004 the agency submitted
interrogatories to complainant for him to complete. Complainant was
notified that failure to comply within fifteen calendar days could
result in dismissal of his complaint. On December 16, 2004, the agency
resubmitted the interrogatories, explaining to complainant that the
statement had to be his, not his representative's, and that it had to be
signed by him. He was again notified of the consequences of his failure
to comply. On March 9, 2005, the agency issued a FAD dismissing the
complaint, noting that complainant had still not submitted a statement
more than 60 days later.
On appeal, complainant does not explain why he failed to submit a
statement. Nor does he deny receiving the interrogatories, or argue
that he did not know what address to use when returning them. Instead he
argues that he was not told the identity of the agency EEO investigator.
We therefore find that the agency properly dismissed the complaint and
the FAD is affirmed.
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
July 28, 2005
__________________
Date
1 In a prior decision, the Commission affirmed
the dismissal of nine other allegations. See Henderson v. Department
of Homeland Security, EEOC Appeal No. 01A42129 (October 26, 2004)