05991187
09-13-2000
Anita Morales, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Anita Morales v. Social Security Administration
Request No. 05991187
September 13, 2000
.
Anita Morales,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Request No. 05991187
Appeal No. 01975381
Agency No. 95-0589
Hearing No. 360-96-8843X
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant Anita Morales (complainant 2 in the prior decision,
EEOC Appeal No. 01975381, which was consolidated under EEOC Appeal
No. 01975301) initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Niesner,
et al. v. Social Security Administration, EEOC Appeal No. 01975301
(August 27, 1999).<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)).
On reconsideration, the complainant, among other things, reiterates the
previously submitted contention that the Administrative Judge erred in
finding that she failed to establish a prima facie case of discrimination
based on disparate treatment. Further, complainant continues to compare
herself to individuals in other area offices of the agency who are not
similarly situated. In this regard, complainant asserts that she has
been denied discovery requests for records concerning the promotion of
claims clerks to service representatives in other agency offices near
Austin, Texas. Complainant also contests her district manager's decision
not to promote claims clerks to service representatives.
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. With respect to
complainant's contentions on appeal, it is well established that in order
for employees to be considered similarly situated, all relevant aspects
of the employees' work situation must be identical or nearly identical.
This requires that they engage in the same conduct, report to the
same supervisor, perform the same job function, and have equivalent
pertinent records. See Hunter v. United States Postal Service, EEOC
Request No. 05960762 (October 1, 1998)(emphasis added). Accordingly,
information concerning the promotions of claims clerks in other offices is
not relevant to the claim herein and the Administrative Judge correctly
concluded that the complainant failed to establish a prima facie case.
The decision in EEOC Appeal No. 01975301, et al. remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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
September 13, 2000
__________________
Date
1On 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. We further
note that The Rehabilitation Act was amended in 1992 to apply the
standards in the Americans with Disabilities Act (ADA) to complaints
of discrimination by federal employees or applicants for employment.
Since that time, the ADA regulations set out at 29 C.F.R. Part 1630
apply to complaints of disability discrimination. The aforementioned
regulations, as amended, may also be found at the Commission's website at
www.eeoc.gov. Finally, we note that the present complainant was the only
complainant to request reconsideration of the prior consolidated decision.
Accordingly, the instant Denial will address only the contentions of
the present complainant.