0520110626
02-07-2012
Richard Arizpe, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Richard Arizpe,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520110626
Appeal No. 0120081707
Hearing No. 450-2007-00297X
Agency No. 2006-20531-FAA-05
DENIAL
Complainant timely requested reconsideration of the decision in Richard
Arizpe v. Department of Transportation, EEOC Appeal No. 0120081707
(July 8, 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).
The previous decision affirmed the Agency’s implementation of the
decision without a hearing issued by an EEOC Administrative Judge
(AJ), which found that Complainant had not established that he had been
constructively discharged on the basis of his claimed disabilities.
In his request for reconsideration Complainant argued that the previous
decision was clearly erroneous in that it did not correct the definition
of his EEO complaint issues, accepted the untrue statement of one of
the Agency managers, did not remand his complaint to an AJ in order for
a hearing to be held and testimony from certain witnesses to be heard,
and that it did not find that Complainant had shown that his working
conditions had become intolerable. Complainant also advanced arguments
which suggested that the Agency was engaged in the “migration” of
certain employees for the purposes of “involuntary servitude,”
in violation of the Constitution, as exemplified by his involuntary
transfer of duty station from San Antonio, Texas to Houston, Texas
in 1996. The Agency did not submit a brief or statement in opposition
to Complainant’s request for reconsideration.
We find that Complainant has not shown that the previous decision
involved a clearly erroneous interpretation of material fact or law.
We find that the Agency properly defined Complainant’s claim to be that
of a constructive discharge claim when he was “forced” to retire on
March 31, 2006. We also find that although Complainant disputed that
his supervisor accurately reported a statement he allegedly made (“How
many times do I have to tell management that I’m not going to work,
and I’m never going to work”), the record is replete with statements
undisputedly made by Complainant to the same effect, such as “I am
no longer ready, I am no longer willing, and most definitely, no longer
able, to perform the duties of my position of record.” Additionally,
we find that the testimony which Complainant wished to have heard at
hearing by one of his witnesses would have concerned unrelated events
from October 2000, and Complainant has not shown how the testimony was
material to his work conditions in 2005/2006, beyond that it was part of
his history as an employee at the Agency. We conclude that the previous
decision was correct in its finding that Complainant had not shown that
his working conditions had become intolerable due to the discriminatory
animus of his managers. Finally, we find that Complainant’s arguments
regarding the Agency’s supposed violation of the U.S. Constitution and
its engagement in the “migration” and “involuntary servitude”
of employees are not persuasive or worthy of credence.
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. 0120081707 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, 794I. 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
February 7, 2012
Date
2
0520110626
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110672