Orlando L. Correa, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionDec 21, 2011
0520110704 (E.E.O.C. Dec. 21, 2011)

0520110704

12-21-2011

Orlando L. Correa, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.




Orlando L. Correa,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Customs and Border Protection),

Agency.

Request No. 0520110704

Appeal No. 0120080214

Hearing No. 510-2007-00085X

Agency No. HS-03-CBP-000482

DENIAL

Complainant timely requested reconsideration of the decision in Orlando

L. Correa v. Dep’t of Homeland Security, EEOC Appeal No. 0120080214

(Aug. 4, 2011). 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).

In the underlying complaint, Complainant alleged he was discriminated

against based on his National Origin (Hispanic) when he was subjected to

discipline and harassment. After the completion of an investigation,

Complainant requested a hearing before an EEOC Administrative Judge

(AJ). The AJ granted the Agency’s motion for a decision without

a hearing. The AJ found that Complainant failed to establish that he

was discriminated against as alleged. Complainant filed an appeal with

this Commission.

In Correa v. Dep’t of Homeland Security, EEOC Appeal No. 0120080214

(Aug. 4, 2011), the Commission concluded that the AJ appropriately

issued a decision without a hearing. Further, the Commission found

that Complainant failed to demonstrate that he was discriminated against

as alleged. Complainant requests that we reconsider this decision.

In his request for reconsideration, Complainant reiterates arguments

made previously on appeal. We remind Complainant that a “request for

reconsideration is not a second appeal to the Commission.” Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), 9-17 (November 9, 1999). Accordingly, we find that

Complainant failed 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.

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(b), and it is the decision of the Commission to deny

the request. The decision in EEOC Appeal No. 0120080214 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 (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

__12/21/11________________

Date

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0520110704

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520110704