0520090631
09-17-2009
Eduardo A. Mendez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Eduardo A. Mendez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520090631
Appeal No. 0120091250
Agency No. HS07CIS002025
Hearing No. 550-2008-00368X
DENIAL
Complainant timely requested reconsideration of the decision in Eduardo
A. Mendez v. Department of Homeland Security, EEOC Appeal No. 0120091250
(July 16, 2009). 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 our prior decision, the Commission affirmed that agency's finding
of no discrimination. See id. The agency had implemented an AJ's
summary judgment decision, finding that complainant failed to show the
agency's reason (i.e. complainant's lacking performance) was pretext
for discrimination. On appeal, complainant did not establish that there
were material facts in dispute nor that the agency's explanations were
pretext.
In his request complainant argues, for the first time, that there are
genuine issues of material fact. Specifically, complainant disputes
that he conducted interviews without an interpreter, failed to fill
out necessary paperwork, and kept applicants late. Further, complainant
contends that the agency ignored his improved performance between February
and June 2007. Complainant asserts that the agency did not have a
legitimate reason for terminating his employment. However, we remind
complainant that a "request for reconsideration is not a second appeal
to the Commission." Equal Employment Opportunity Management Directive
110 for 29 C.F.R. Part 1614 (Nov. 9, 1999), Chapter 9.
After reconsidering 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. 0120091250 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 (P0408)
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 (Z1008)
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
September 17, 2009
__________________
Date
3
0520090631
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013