05980400
12-06-2000
Pietro D. Bencivenga, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Immigration & Naturalization Service) Agency.
Pietro D. Bencivenga v. Department of Justice (INS)
05980400
December 6, 2000
.
Pietro D. Bencivenga,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Immigration & Naturalization Service)
Agency.
Request No. 05980400
Appeal No. 01960348
Agency No. I-92-6128
Hearing No. 160-95-8137X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Pietro
D. Bencivenga v. Department of Justice (INS), EEOC Appeal No. 01960348
(January 29, 1998).<1> EEOC Regulations provide that the Commission may,
in its discretion, 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 order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which 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 to reconsider is narrow.
Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989). A Request to Reconsider is not merely a form of a second
appeal. Regensberg v. U.S. Postal Service, EEOC Request No. 05900850
(September 7, 1990). In his request, the complainant reargues that the
administrative judge (AJ) denied him due process. He further complains
about the previous decision and that the Commission failed to timely
request the agency complaint file when processing his appeal.<2>
The complainant alleged discrimination based on his race (white) and sex
(male) when he was unable to graduate from the Immigration Officer Basic
Training Course because he was given sub-standard instruction in Spanish,
while two women who failed firearms training were allowed to graduate,
and when, upon his return to his duty station, he was assigned low-level
clerical duties. He also alleged discrimination when the agency requested
medical documentation to support a skin condition which did not allow
him to shave. The AJ found that the complainant failed to meet his
burden of making a prima facie case because he failed to establish that
he had been subjected to an adverse action that other similarly situated
individuals outside his protected groups received better treatment under
the same or similar circumstances.
We note that the record shows that the AJ's acknowledgment order (AO)
was sent to the complainant's address of record which the complainant
had subsequently changed. The record contains no evidence that the
complainant notified, nor does he contend, that he notified the AJ of
a change of address until six days after he had received a copy of the
AO from the agency. Moreover, the record shows no evidence, nor does
the complainant contend that he promptly attempted to follow the order
by submitting a discovery request to the agency within ten days of his
receipt of the copy from the agency, rather the record shows he requested
that the AJ send him the AO. We note further, that the complainant
fails to explain what evidence he was unable to produce by not making
a discovery request, he merely argues that because he did not receive
the AO from the AJ he was denied due process because he was denied the
discovery process.
The record does show that the complainant timely responded to the
AJ's subsequent notice of his intention to issue a decision without
a hearing and giving the complainant fifteen days to respond, wherein
the complainant made no allegations or arguments that he needed further
discovery to prove his case. The record shows that some five months
later, the AJ issued a decision without a hearing, after considering
all of the parties' submissions. The agency issued its final decision
adopting the findings of the AJ. The appellate decision, after a careful
review of the entire record (including the agency's complaint file),
summarily affirmed the AJ's decision and the agency's adoption of it.
The complainant complained about the previous decision. Our review of
the record finds that the AJ properly made a finding of no discrimination,
therefore, we find no error with the previous decision.
After a review of the complainant's request to reconsider, 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. 01960348 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request to reconsider.
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
December 6, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record shows that the appeal was filed on October 13, 1995, and
that the Commission requested the case file on November 13, 1995.