01993588
03-06-2000
Rupert F. Arino, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Rupert F. Arino, )
Complainant, )
) Appeal No. 01993588
v. ) Agency No. SSA-0848-94
) Hearing No. 350-98-8013X
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal
from the agency's final decision in the above-entitled matter.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
By letter to the Commission postmarked October 25, 1999, complainant
sought to amend the instant complaint to add a claim of retaliation based
on his alleged non-selection, during the pendency of his appeal, for the
position of Management Support Specialist (vacancy announcement number
SSA-99-302) in the agency's Tucson District Office. While a complainant
may amend his complaint at any time to add another statutory basis for
an alleged discriminatory occurrence without changing the identity of his
claim, Dragos v. United States Postal Service, EEOC Request No. 05940563
(January 19, 1995), we note that here complainant is instead raising
an additional claim on appeal concerning a new occurrence. This issue
is not before the Commission at this time, inasmuch as complainant has
neither sought EEO counseling nor filed a formal complaint in regard
to it. It is not clear from complainant's letter whether or not he
is in the process of filing an EEO complaint on this issue. If not,
complainant is advised that if he wishes to pursue, through the EEO
process, the additional claim raised for the first time on appeal,
he shall initiate contact with an EEO counselor within 15 (fifteen)
calendar days after he receives this decision. The Commission advises
the agency that if complainant seeks EEO counseling regarding the new
allegation within the above 15-day period, the date complainant filed
his letter with the Commission in which he raised this claim (October 25,
1999) shall be deemed to be the date of the initial EEO contact, unless
he previously contacted a counselor regarding this matter, in which case
the earlier date would serve as the EEO counselor contact date. Cf. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (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:
3/6/00
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Equal Employment Assistant 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.