01980089_r
09-15-1999
John E. Boyer, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.
John E. Boyer, )
Appellant, )
)
v. ) Appeal No. 01980089
) Agency No. 97-0414-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration,)
Agency. )
)
DECISION
Appellant filed an 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 final agency decision
was issued on August 19, 1997. The appeal was postmarked September 17,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues presented on appeal are as follows:
whether the agency properly dismissed allegations 1 and 3 of appellant's
complaint on the grounds of failure to state a claim;
whether the agency properly dismissed allegations 2, 4, and 5 of
appellant's complaint on the grounds that it states the same claim as
that pending before the Commission.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on March 13, 1997. On May 29, 1997, appellant filed a formal EEO
complaint wherein he alleged that he had been discriminated against on
the bases of his sex (male), race (Caucasian), age (55), and in reprisal
for his previous EEO activity when:
1. On January 27, 1997 and February 13, 1997, the agency denied use of a
meeting room to an organization known as Government Men for Equality Now.
Appellant is a member of the group's steering committee.
2. The agency has been and is pursuing a continuing systemic
discriminatory policy against all males and particularly white males
forty years of age and older in the personnel practices of hiring,
ratings, awards, and promotions. Appellant is specifically attacking the
overall discriminatory patterns and practices against males, especially
Caucasian males, as these actions have affected his career... and created
a hostile employment atmosphere for himself and all male employees,
and has resulted in him not being promoted for over twenty years,
lowered ratings, and he has received diminished performance award amounts.
3. The Office of Disability maintains a clandestine listing of
individuals in its office who have filed EEO complaints or union
grievances. Appellant maintains that this list is used to discredit
individuals when they file for promotions and it affects their ratings
and awards.
4. He is unable to obtain fair and impartial counseling of his
complaint from within the agency due to the discriminatory patterns and
practices against males for at least the last twenty years, because he
has previously filed complaints against the Office of Civil Rights and
Equal Opportunity (OCREO), the majority of OCREO staff are female and
minority and have been illegally hired, the OCREO counseling staff is
an all black female staff, and because the Director of OCREO reports to
the Deputy Commissioner of Human Resources instead of directly to the
agency Commissioner.
5. The agency has denied him his representative of choice by declaring
this individual ineligible to represent employees in EEO complaints.
In its final decision, the agency dismissed allegations 1 and 3 on the
grounds that they failed to state a claim. The agency determined that
appellant failed to allege or establish personal loss or harm with regard
to a term, condition, or privilege of his employment. Allegations 2,
4, and 5 were dismissed on the grounds that they state the same claims
that are pending before the Commission. The agency determined that these
allegations were raised and addressed in three of appellant's previous
complaints, and that these matters are pending before the Commission.
On appeal, appellant contends with regard to allegation 1 that the
agency's denial of a meeting room prevented him from effectively advising
his fellow employees about their EEO rights. Appellant argues that
this decrease in his effectiveness resulted in him being ridiculed
by his peers, and has caused him to feel depressed about his efforts
to prevent discrimination against Caucasian males. With respect to
allegation 2, appellant maintains that this allegation is not the same
claim pending before the Commission because it covers a different
period of time. Appellant argues that as a result of the agency's
discriminatory policies and practices, he has suffered great personal
harm in not being selected for promotions, receiving lower ratings than
females, receiving no cash or noncash awards, and receiving lower cash
award amounts when he did receive a cash award. As for allegation 3,
appellant argues that he has been seriously injured by the agency keeping
lists of employees who have filed EEO complaints and union grievances.
Appellant states that the lists have been used to keep individuals from
being promoted, properly rated, and receiving awards. With regard to
allegation 4, appellant contends that this allegation is similar to the
allegations in the complaints cited by the agency, but that it is not
the same because it is an updating of the discrimination encountered
by him. Appellant claims that the discriminatory processing of his
complaints by the OCREO is reflected in the delays in his complaints,
a failure to inquire into or counsel on his allegations, and the
denial of his representative of choice. With respect to allegation 5,
appellant maintains that the agency violated 29 C.F.R. �1614.605(c)
by not affording his representative the opportunity to respond before
effecting the disqualification. Appellant argues that although this
disqualification is similar to the previous allegations, it is different
because it represents another occurrence of the alleged discrimination.
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.
It has long been established that �identical� does not mean �similar.�
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed allegation 2 on the grounds that it states the same
claim as that in a complaint that was pending before the Commission,
John E. Boyer v. Social Security Administration, EEOC Appeal No. 01971500
(June 19, 1998). Appellant contends that the allegations differ because
they pertain to different time frames. However, we find that both
allegations attack the same purportedly discriminatory policy, i.e.,
the alleged systemic discriminatory policy against males, particularly
white males, in the areas of hiring, promotions, awards, and ratings.
The remedial relief available to appellant should he prevail on this
allegation would not differ or be enlarged by filing the same allegation
more than once. Accordingly, the agency's decision to dismiss allegation
2 was proper and is AFFIRMED.
Appellant alleged in allegation 5 that the agency discriminatorily
disqualified his choice of representative. Specifically, appellant
alleged that the agency improperly issued a �blanket order� disallowing
appellant choice of representative from every representing any employees.
In EEOC Appeal No. 01971500 (June 19, 1998), appellant also challenged
the disqualification of the same representative. Consequently, we
find that allegation 5 also states the same claim as a prior complaint.
Accordingly, the agency's decision to dismiss allegation 5 was proper
and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. The Commission's Federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (Apr. 21, 1994).
While the agency dismissed allegation 4 for stating the same claim as a
prior matter, upon review, we find that it is more properly dismissed for
failure to state a claim. Appellant alleged that the agency improperly
processed his complaint. With respect to allegations pertaining to
complaints processing, the Commission has stated that the agency is
required to refer the complainant to the agency official responsible
for the quality of complaint processing, who should earnestly attempt
to resolve dissatisfactions with the complaints process as early as
possible; such allegations are not processable as separate allegations
of discrimination. See EEO MD 110 (4-8). Accordingly, we find that
allegation 4 fails to state a claim and the agency's dismissal of
allegation 4 is AFFIRMED for the reasons set forth herein.
In allegation 1, appellant alleged that the agency denied the use of
the meeting room to the Government Men for Equality Now organization
to which he belonged. We find that the denial of a meeting room to an
organization did not cause appellant to suffer a personal harm to a term,
condition, or privilege of his employment. Accordingly, the agency's
dismissal of allegation 1 on the grounds of failure to state a claim
was proper and is AFFIRMED.
Finally, with regard to allegation 3, appellant claims that the list
of individuals who have filed EEO complaints or union grievances
has been utilized to identify the so called �troublemakers�, and
that these individuals have not been promoted, properly rated, or
awarded. We find that appellant has raised a generalized grievance.
Appellant has not identified any specific agency actions taken against
him. See Warth v. Seldin, 422 U.S. 490 (1975); Canfield v. Social
Security Administration, EEOC Request No. 05950806 (December 1, 1997).
Accordingly, the agency's dismissal of allegation 3 on the grounds of
failure to state a claim was proper and is AFFIRMED.
CONCLUSION
The agency's dismissal of allegations 1-5 is hereby AFFIRMED.
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 (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.
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:
September 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations