0120151509
02-10-2017
Omer P.,1 Complainant, v. Dana J. Boente, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Omer P.,1
Complainant,
v.
Dana J. Boente,
Acting Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120151509
Agency Nos. BOP-2004-0180, BOP-2009-0775 & BOP-2010-0737
DECISION
On March 24, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency letter dated March 24, 2015, advising him that his three above captioned equal employment opportunity (EEO) complaints were closed because they were previously administratively adjudicated by the Agency and the EEOC. In these complaints, as applicable, Complainant alleged discrimination 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.
At the time of events giving rise to his complaints, Complainant worked as a Cook Foreman at the Agency's Federal Correctional Institution in Morgantown, West Virginia. He separated in August 1978, contending he was constructively discharged.
On April 14, 2004, Complainant filed Complaint 1 (BOP-2004-0180) alleging that his constructive discharge caused or aggravated medical conditions which were disabilities.2 On September 17, 2004, the Agency dismissed Complaint 1 for failure to timely initiate EEO counseling. On appeal, the Commission affirmed. EEOC Appeal No. 01A50308 (Jan. 13, 2005), request for reconsideration denied, EEOC Request No. 05A50522 (Mar. 22, 2005).3
On October 22, 2009, Complainant filed Complaint 2 (BOP-2009-0775) alleging that he was discriminated against based on his race (African-American) when in August 1978, he was forced to resign in lieu of his termination. On January 5, 2010, the Agency dismissed Complaint 2 for being identical with Complainant's claim in Complaint 1. On appeal, the Commission affirmed. EEOC Appeal No. 0120101212 (Mar. 31, 2011), request for reconsideration denied, EEOC Request No. 0520110418 (Sep. 23, 2011).
On September 24, 2010, Complainant filed Complaint 3 (BOP-2010-0737) alleging that he was discriminated against based on his race when he was harassed, and in August 1978, forced to resign. On November 22, 2010, the Agency dismissed Complaint 3 for raising the identical claim in Complaints 1 and 2. On appeal, the Commission affirmed, albeit on a different ground. EEOC Appeal No. 0120110906 (Mar. 31, 2011), request for reconsideration denied, EEOC Request No. 0520110428 (Sep. 23, 2011). Specifically, the EEOC found that Complainant failed to timely initiate EEO counseling with respect to Complaint 3.
The above shows that the Agency's letter advising Complainant that Complaints 1, 2 and 3 are closed because they were already adjudicated in the administrative process was correct.
Further, Complainant filed civil actions on the same claims in Complaints 1, 2, and 3. Specifically, on March 29, 2005, Complainant filed a civil action on the same claim made in Complaint 1. On September 27, 2006, the Court found that the Commission properly dismissed Complaint 1 for failure to timely initiate EEO counseling, and dismissed the civil action complaint with prejudice. Omer P. v. Alberto Gonzalez, Attorney General, Civil Action No. 1:05-cv-00058, 2006 WL 2796783 (N.D. West Virginia 2006), affirmed, 229 F.Appx 218 (4th Cir. 2007), certiorari denied, 128 S.Ct. 957 (2008).4
On December 16, 2011, Complainant filed a civil action on the same claims in Complaints 2 and 3. In Omer P. v. United States Attorney General (Federal Bureau of Prisons), 1:11-cv-00203, 2013 WL 1164355 (N.D. West Virginia 2013), affirmed, 537 F.Appx 281 (4th Cir. 2013) the Court, applying laches, dismissed the civil action complaint with prejudice.5
The Agency properly informed Complainant that Complaints 1, 2 and 3 were closed because they were already administratively adjudicated. Further, Complainant's appeal is DISMISSED because he has filed civil actions on the matters in Complaints 1, 2 and 3. 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (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
February 10, 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. We will also use this pseudonym when citing Court decisions on civil actions Complainant filed.
2 The Agency defined Complaint 1 as alleging discrimination based on disability when Complainant was forced to resign in August 1978. On September 27, 1996, the United States District Court for the Northern District of West Virginia decided that Complaint 1 was incorrectly defined - Complainant actually alleged that he sustained a disability as a result of his alleged forced resignation. See Omer P. v. Alberto Gonzalez, Attorney General, 1:05-cv-00058, 2006 WL 2796783, at *3 (N.D. West Virginia 2006).
3 These decisions contained a typographical error misidentifying Complaint 1 as Agency No. BOP-2004-0108 rather than BOP-2004-0180. This is confirmed by a review of the counselor's report on Complaint 1, Complaint 1, the FAD thereon, our decision in EEOC Appeal No. 01A50308, the referenced Court decision, and Complainant's description on appeal of the subject of Complaint 1.
4 In Omer P. v. Alberto Gonzalez, Attorney General, 1:11-cv-00203, 2013 WL 1164355, at *3 - *4 (N.D. West Virginia 2013), the Court found that the above dismissal with prejudice was on the merits.
5 Some documents referenced in this decision are located in Complainant's prior appeals to the Commission and his civil action cases with the United States District Court for the Northern District of West Virginia.
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