01975053
06-22-1999
Jaleh Akert, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.
Jaleh Akert v. Social Security Administration
01975053
June 22, 1999
Jaleh Akert, )
Appellant, )
) Appeal No. 01975053
v. ) Agency No. SSA-913-93
) Hearing No. 310-96-5500X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration,)
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision ("FAD") concerning her complaint of employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In her complaint, appellant alleged that she was
discriminated against on the bases of national origin (Iranian), religion
(Muslim), and reprisal (prior EEO activity), when: (1) management failed
to send out a national solicitation for the Leave Transfer Program ("LTP")
on her behalf; and (2) management delayed processing her application
for disability retirement. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a GS-5 Docket Clerk at the agency's
Office of Hearings and Appeals, Dallas, Texas, filed a formal EEO
complaint with the agency on August 12, 1993, alleging discrimination
as referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
("EEOC") Administrative Judge ("AJ"). Determining that there was no
genuine dispute of material fact and pursuant to 29 C.F.R. � 1614.109(e),
the AJ issued a Recommended Decision ("RD") Without a Hearing finding
no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of national origin or religion discrimination or reprisal regarding the
LTP because she failed to demonstrate that similarly situated employees
not in her protected classes were treated differently under similar
circumstances or that there was a nexus between her prior EEO activity and
the actions in this case. The AJ found that the agency timely processed
appellant's solicitation within the guidelines of the LTP. With regard
to appellant's application for disability retirement, the AJ found
that appellant failed to present any evidence to show that management
acted in a discriminatory manner in the processing of her application.
The agency's FAD adopted the AJ's RD.
On appeal, appellant asserts that the AJ failed to address all the issues
in the case<1> and requests that we reverse the FAD. The agency responds
by restating the position it took in its FAD and requests that we affirm
its decision.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We note that nothing proffered by
appellant on appeal differs significantly from the arguments given full
and fair consideration by the AJ. Therefore, the Commission discerns
no basis upon which to overturn the AJ's finding of no discrimination
in this matter. Accordingly, it is the decision of this Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Appellant asserts that the AJ did not address the issues pertaining to:
(1) management's attempts to block her workers' compensation claim; and
(2) the EEO investigator's contact with her regarding her complaint.
However, this Commission dismissed both of these allegations in Akert v.
Social Security Administration, Appeal No. 01945084 (May 11, 1995).