01990679
06-03-1999
Michael H. Bostron, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Michael H. Bostron v. Social Security Administration
01990679
June 3, 1999
Michael H. Bostron, )
Appellant, )
)
v. ) Appeal No. 01990679
) Agency No. 98-0635-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's September 18, 1998
decision dismissing a portion of appellant's complaint (allegations 1 -
3 (nonselections)) pursuant to 29 C.F.R. �1614.107(b) for untimely EEO
Counselor contact and a portion of appellant's complaint (allegation 4
- improper processing of complaint) pursuant to 29 C.F.R. �1614.107(a)
for failing to state a claim.
As an initial matter the Commission finds that the agency properly
defined the allegations in the complaint.
Allegations 1 - 3
Regarding the nonselections the agency found that appellant was
constructively notified of his nonselections through the posting of
the selectees' names on bulletin boards on January 18, 1998; March 1,
1998; and March 15, 1998. The agency found that appellant initially
contacted an EEO Counselor on June 4, 1998. Appellant argues that he
did not become aware of his nonselection for two positions until June
2, 1998 and for the other position on June 4, 1998. Appellant argues
that he became aware of the three nonselections upon his contact of a
personnel specialist. On appeal appellant argues that the "bulletin
boards postings are sporadic at best and do not contain information
necessary for Appellant to file a complaint." The agency has not
supplied any evidence in the record showing if and when the selections
at issue were posted on a bulletin board. Therefore, it is not clear
when appellant should have reasonably suspected that he was not selected
for discriminatory reasons. The Commission shall remand allegations 1 -
3 so that the agency may supplement the record with evidence showing if
and when the selections at issue were posted on a bulletin board.
Allegation 4
Regarding allegation 4 we find that the portion of allegation 4
alleging that appellant was denied his choice of representative is
properly dismissed pursuant to �1614.107(a) for stating the same claim
that is pending before the Commission in EEOC Appeal No. 01970995.
The agency properly dismissed the remainder of allegation 4 (alleging
improper complaint processing) for failing to state a claim pursuant
to �1614.107(a).
The agency's decision dismissing allegations 1 - 3 is VACATED and
we REMAND allegations 1 - 3 to the agency for further processing in
accordance with this decision and applicable regulations. The agency's
decision dismissing allegation 4 is AFFIRMED.
ORDER
The agency shall supplement the record with evidence showing if and
when the selections at issue in allegations 1 - 3 were posted on a
bulletin board. Thereafter the agency shall determine if appellant
timely contacted an EEO Counselor regarding allegations 1 - 3. Within 30
days of the date this decision becomes final, the agency shall issue
a new decision dismissing the remanded allegations or issue a letter
to appellant accepting the remanded allegations for investigation.
The agency shall submit a copy of the decision dismissing the remanded
allegations or a copy of the letter to appellant accepting the remanded
allegations for investigation, to the Compliance Officer as referenced
herein.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations