0120110040
01-19-2011
Retina D. Felton, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Retina D. Felton,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120110040
Agency No. BOP-2010-0324
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
On April 5, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the basis of disability when:
she was terminated from her position as Correctional Officer on February 16, 2008.
Moreover, Complainant claimed that Agency management had made no attempt to offer her a reasonable accommodation in order to return to Agency employment.
The Agency issued a final decision (date illegible). Therein, the Agency indicated that the formal complaint was dismissed for failure to state a claim, pursuant to EEOC Regulation 29 C.F.R.� 1614.107(a) (1). However, a fair reading of the analysis in the final decision reflects that the Agency was in essence dismissing the formal complaint on the grounds that it raised the same matter that was the subject of a previously filed formal complaint. The Agency expressly noted that the matters raised in the instant formal complaint were addressed in the investigation of Complaint No.BOP-2008-0464. The Agency noted further that a final decision was issued on Complaint No. BOB-2008-0464, on March 23, 2009.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1), on the grounds that Complainant filed a prior formal complaint on the same matter. The Commission acknowledges that documents relating to Complaint No.BOP-2008-0464, are not contained in the record. However, the Commission notes that the record does contain a copy of a separate formal complaint, under Complaint No. "2010-0074" which was date-stamped as received by the Agency's Discrimination Complaints and Ethics Office, on December 4, 2009. In that formal complaint, Complainant raises the same matters address in the instant formal complaint.
The Agency's decision to dismiss the instant formal complaint is therefore AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (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
January 19, 2011
__________________
Date
2
0120110040
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013