Anita Morales, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
05991187 (E.E.O.C. Sep. 13, 2000)

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.