0520090222
03-06-2009
Jose Sanchez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jose Sanchez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520090222
Appeal No. 0720070026
Hearing No. 370-2005-00376X
Agency No. 04-0137-SSA
DENIAL
Both complainant and the agency timely requested reconsideration of the
decision in Jose Sanchez v. Social Security Administration, EEOC Appeal
No. 0720070026 (December 11, 2008). 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).
After reconsidering the previous decision and the entire record, the
Commission finds that the requests fail to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the requests. The Commission finds that both parties are attempting
to reargue issues that they previously presented in the appellate
decision.1 This attempt at a second review is not allowed. A "request
for reconsideration is not a second appeal to the Commission." Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(rev. Nov. 9, 1999), at 9-17. Accordingly, the decision in EEOC Appeal
No. 0720070026 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request.
ORDER
To the extent that it has not already done so, the agency is ordered to
take the following remedial actions:
A. For the period from June 14, 2004 to September 30, 2004, the
agency shall determine the appropriate amount of back pay, with interest
and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no
later than sixty (60) calendar days after the date this decision becomes
final. The complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue
a check to the complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The complainant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement entitled "Implementation of the Commission's Decision."
B. Within fifteen (15) days of the date this decision becomes final,
the agency shall pay complainant $9,500.00 in non-pecuniary compensatory
damages and $110.57 in pecuniary compensatory damages.
C. The agency shall provide four hours of training for complainant's
first-level and second-level supervisors, addressing these employees'
responsibilities with respect to eliminating discrimination in the federal
workplace. The training shall place special emphasis on prevention
and elimination of discrimination against persons with disabilities
and provision of reasonable accommodations to qualified individuals
with disabilities. The Commission does not consider training to be a
disciplinary action.
D. The agency shall consider appropriate disciplinary action for
complainant's first-level and second-level supervisors. If the agency
decides to take disciplinary action, it shall identify the action
taken. If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline. The
Commission does not consider training to be a disciplinary action.
E. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented. Copies
must be sent to complainant and his/her representative, if applicable.
POSTING ORDER (G0900)
The agency is ordered to post at its Porterville facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The
original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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
03/06/09
__________________
Date
1 In the agency's case, it is presenting arguments that the Commission
declined to consider in connection with the previous decision because
the agency's brief was untimely.
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0520090222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013