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.