Tyrone Rodriguez, Sr., Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionSep 14, 2005
05a50871 (E.E.O.C. Sep. 14, 2005)

05a50871

09-14-2005

Tyrone Rodriguez, Sr., Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Tyrone Rodriguez, Sr., v. Department of Homeland Security

05A50871

09-14-05

.

Tyrone Rodriguez, Sr.,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Request No. 05A50871

Appeal No. 01A40448

Agency No. I-97-0220

Hearing No. 100-A1-8070x

DECISION ON REQUEST TO RECONSIDER

On May 11, 2005, Tyrone Rodriguez, Sr., (complainant) timely<1>

requested reconsideration of the decision in Tyrone Rodriguez, Sr.,

v. Michael Chertoff, Secretary, Department of Homeland Security, EEOC

Appeal No. 01A40448 (March 24, 2005). EEOC regulations provide that

the Commission may, in its discretion, grant a request to reconsider any

previous Commission decision where the party demonstrates that: (1) the

appellate decision involved a clearly erroneous interpretation of material

fact or law; or (2) the decision will have a substantial impact on the

policies, practices, or operation of the agency. 29 C.F.R. � 1614.405(b).

The previous decision affirmed the agency's final action accepting the

decision of the Administrative Judge (AJ) that it did not discriminate

against complainant when he was not hired as a border patrol agent.

In his request, complainant argued that the previous decision did not

provide a legal analysis and that the AJ applied the wrong standard of

proof and required complainant to prove discrimination. Initially,

we note that the previous decision affirmed the AJ's decision,

which provided a full and correct legal analysis. Further, in fact,

complainant misstated his burden of proof, i.e., it is his obligation to

demonstrate by a preponderance of the evidence that the agency's reason

for its action was not true and a pretext, or sham, for discrimination;

because complainant did not carry his burden, the AJ properly sustained

the agency's refusal to hire him. We find that the previous decision

was correct.

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 form of 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.

After a review of the complainant's request for reconsideration, 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. 01A40448 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on the decision of the Commission on this request.

STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 (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

______09-14-05____________

Date

1The Commission will accept complainant's request as timely filed.

He is reminded that it is his obligation to inform the Commission when

his address changes.