0520110048
12-17-2010
Jairo N. Vargas, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Jairo N. Vargas,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520110048
Appeal No. 0120102154
Hearing No. 540-2010-00016x
Agency No. HS-09-CBP-004285
DENIAL OF REQUEST TO RECONSIDER
Complainant timely requested reconsideration of the decision in Jairo
N. Vargas v. Department of Homeland Security, EEOC Appeal No. 0120102154
(September 7, 2010). 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).
BACKGROUND
The appellate decision affirmed the Agency's Final Order (FO) dated
April 1, 2010.1 The FO agreed with the EEOC Administrative Judge's
(AJ) determination that Complainant contacted an EEO counselor more
than 45 days from the date of his termination effective May 28, 2008.
Complainant initially contacted the Agency's EEO office on June 10,
2008, but he did not further pursue or initiate the EEO process, until
he contacted an EEO counselor on March 9, 2009. The AJ found that,
based on evidence in the record and Complainant's own admissions, the
June 2008, EEO contact was not sufficient to constitute an intent to
pursue the EEO process and that his subsequent EEO contact was untimely.
In his request for reconsideration, Complainant repeats his statement
made on appeal that his medications and depression rendered him unable
to defend himself against the aggressive investigators from the Agency's
Office of Professional Responsibility.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a second appeal. Lopez v. Department of the Air Force, EEOC
Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC
Request No. 05900850 (September 7, 1990). The Commission finds that
the Complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the Agency. The prior decision correctly
determined that Complainant's contact with an EEO counsel was beyond
the 45-day limitation period and that he did not offer a sufficient
justification for an extension. See 29 C.F.R. � 1614.107(a)(2); 29
C.F.R. � 1614.604(c).
CONCLUSION
After review of the previous decision and the entire record, the
Commission finds that the Complainant's 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 of the Commission in Appeal
No. 0120102154 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on a
Request to Reconsider.
RIGHTS ON A REQUEST FOR CONSIDERATION
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___12/17/10_______________
Date
1 Complainant alleged that the Agency subjected him to discrimination
based on his national origin (Hispanic; Mexican) and disability when, on
May 28, 2008, management terminated his employment during his probationary
period.
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0520110048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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