01974910
04-19-1999
John E. Boyer, Appellant, v. Kenneth S. Apfel Commissioner, Social Security Administration, Agency.
John E. Boyer v. Social Security Administration
01974910
April 19, 1999
John E. Boyer, )
Appellant, )
)
)
v. ) Appeal No. 01974910
) Agency No. 97-0211-SSA
)
Kenneth S. Apfel )
Commissioner, )
Social Security Administration, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
Appellant filed a timely appeal with this Commission from a final
decision of the agency concerning his complaint of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The appeal
is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
1, 3, 4, and 6 on the grounds that appellant raised the same issues in
his prior complaints.
BACKGROUND
In October 1996, appellant contacted an EEO counselor regarding his
allegations of race (White/Caucasian), age (55), sex (male), and reprisal
(prior EEO activity) discrimination. Thereafter, appellant filed a
17-page complaint. In its final decision (FAD), the agency defined the
allegations in appellant's complaint as follows:
1. The agency has been and is pursuing a continuing systemic
discriminatory policy against all males and particularly Caucasian males,
40 years of age and older, in the following personnel practices: Hiring,
rating, awards, and promotions. Appellant is specifically attacking
the overall discriminatory personnel practices against males.
2. Appellant alleges sex discrimination based upon the hostile
discriminatory sexism exhibited by the now retired Deputy Commissioner
for Human Resources in the telling of a degrading, sexist joke at the
Diversity Conference held in Miami, FL, on June 20, 1996.
3. Appellant alleges that due to retaliation and the discriminatory
patterns and practices against males over the last 20 years he is unable
to get fair and equitable counseling from the Office of Civil Rights
and Equal Opportunity (OCREO).
4. Appellant further alleges that the promotions of some females in SSA
have violated the X-118 Classification Standards. As a result, these
females now occupy positions which appellant and other males could have
been promoted to, had not these rampant discriminatory practices been
in place as part of the agency's affirmative action plan.
5. Appellant learned during the week of October 7, 1996, that other
GS-12 Program Analysts and Policy Specialists in the Office of Disability
(OD) had received a higher award than the $175.00 he recently received.
Appellant alleges that he received a smaller award compared to females
and minorities for this last rating period ending on December 30, 1995.
Additionally, appellant alleges retaliation due to his prior EEO
activities for the difference in award amount given.
6. Appellant alleges that he has also been a victim of lowered ratings
and lesser cash awards since 1975 due to the pattern and practice of
giving female and minority employees the majority of the outstanding
ratings so that they would receive higher cash awards and make the best
qualified lists and be promoted over more experienced males, especially
Caucasian male employees.
The agency accepted allegation 5 for investigation. With respect
to allegation 4, the agency advised that an additional inquiry would
be conducted to determine whether the allegation should be accepted
or dismissed and that appellant would receive a separate letter in
regard thereto. Citing to 29 C.F.R. 1614.107(a), the agency dismissed
allegations 1, 2, 3, and 6 on the grounds that they restated the same
issues raised in appellant's prior complaints (96-0554-SSA, 96-0252-SSA,
and 97-0050-SSA).
Appellant then filed the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
Appellant contends--inter alia--that allegations 1, 2, 3, and 6 are
not the same as those in the complaints cited by the agency because the
allegations cover a different time period.<1>
With respect to allegation 2, our review of the instant record and
the record in EEOC Appeal No. 01973522 (July 27, 1998)<2> showed that
appellant in both cases complained of the June 1996 incident in which
an agency official allegedly told a degrading, sexist joke during a
Diversity Conference. The Commission finds that the agency properly
dismissed allegation 2 on the grounds that appellant raised the same
claim in a prior complaint.
In allegation 1, appellant essentially complains of the agency's alleged
"systemic discriminatory policy" against white males with respect to
hiring, promotions, ratings, and awards. A review of allegation 6
showed that it simply is a subset of allegation 1. Although appellant
contends that the instant allegations differ because they pertain to
a different time frame, we note that the allegations attack the same
purportedly discriminatory policy only very generally. The Commission
finds that appellant raised the same claim in two prior complaints, i.e.,
EEOC Appeal No. 01971500 (June 19, 1998) and EEOC Appeal No. 01973522
(July 27, 1998),<3> and that the agency therefore properly dismissed
allegations 1 and 6 for this reason.
In allegation 3, appellant asserted that he was unable to get fair and
equitable counseling on his EEO complaints. In his complaint, appellant
gave examples to show why he believed that OCREO was biased, e.g.,
the majority of the staff is black and female. A review of appellant's
prior complaints in EEOC Appeal Nos. 01971500 and 01973522 showed that
he alleged therein the discriminatory processing of his EEO complaints.
Appellant "agrees that allegation 3 is similar to the allegations in
the complaints cited by the agency...," but contends that it is not
the same as those prior allegations because "it is an updating of the
systemic discrimination...." Appellant, however, failed to raise in
his complaint any new incident of alleged discrimination. Consequently,
the Commission finds that allegation 3 is substantially similar to those
raised in his prior complaints and that the agency properly dismissed
allegation 3 for this reason.
Based on the foregoing, the Commission finds that the agency properly
dismissed allegations 1, 2, 3, and 6.
CONCLUSION
Accordingly, the agency's decision to dismiss allegations 1, 2, 3,
and 6 hereby is AFFIRMED.
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 this 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 this 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 this 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 this 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 this 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 this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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
April 19, 1999
_______________________ ________________________________
DATE Ronnie Blumenthal, Director
1The Commission notes that appellant alleged both disparate treatment and
disparate impact. A disparate impact theory of discrimination generally
involves a facially neutral employment practice that disproportionately
affects members of a protected group. In this case, appellant is alleging
that the agency intentionally favored females and minorities over older
white male employees. Consequently, we find that appellant raises a claim
of disparate treatment, not disparate impact. See Canfield v. Social
Security Admin., EEOC Request No. 05950806 (December 11, 1997).
2The complaint at issue in EEOC Appeal No. 01973522 was Agency No.
97-0050-SSA and was filed on October 29, 1996.
3The complaints at issue in EEOC Appeal No. 01971500 were Agency Nos.
96-0224-SSA and 96-0252-SSA, filed on May 17 and 30, 1996, respectively.