01970995
06-03-1999
Michael H. Bostron, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Michael H. Bostron v. Social Security Administration
01970995
June 3, 1999
Michael H. Bostron, )
Appellant, )
)
v. ) Appeal No. 01970995
) Agency No. 96-0027-SSA, et al. <1>
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
October 11, 1996 dismissing a portion of 72 of appellant's complaints
which were consolidated by the agency.
In the October 11, 1996 the agency accepted the following four allegations
for investigation:
Appellant was not selected for the position of Supervisory Computer
Specialist, GS-334-14, posted on December 4, 1995 via vacancy announcement
number R-1007.
Appellant was not selected for the position of Supervisory Computer
Specialist, GS-334-14, posted on December 4, 1995 via vacancy announcement
number R-1008.
On August 29, 1995 appellant's cc: Mail messages was deleted and
management was unwilling to restore them.
On June 20, 1995 appellant learned that he was not selected for the
Office of Program and Integrity Review's Career Development Program.
The agency defined the following common allegations as repeated in
appellant's complaints:
The agency has been and is pursuing a systemic discriminatory policy
against all males, and White males in particular, in the following
personnel practices: hiring, rating, awards, and promotions.<2>
The agency has not provided fair and impartial processing of appellant's
complaints, has not processed appellant's complaints in a timely manner,
has not included all of appellant's allegations in the counseling and
investigative stages of appellant's complaints, and has failed to make any
reasonable efforts or settlement offers to voluntarily settle appellant's
complaints. These actions are premeditated and are part of the agency's
ongoing delaying tactics and continuing systemic discrimination against
males in general and White males in particular.
The agency has illegally disallowed appellant's representative of choice
and, by declaring appellant's representative of choice ineligible,
has violated 29 C.F.R. �1614.102(a)(2), �1614.103(a), �1614.605(a),
and �1614.605(c). This action is a premeditated act of discrimination
and retaliation.
The agency dismissed allegations 5 - 7 pursuant to 29 C.F.R. �1614.107(a)
for failing to state a claim.
The Commission finds that allegation 5 is properly dismissed for failing
to state a claim pursuant to �1614.107(a) because appellant has not shown
any specific, personal harm from any specific agency action. See Boyer
v. Social Security Admin., EEOC Appeal No. 01971500 (June 19, 1998);
Sobchak v. Social Security Admin., EEOC Appeal No. 01975467 (May 22,
1998); Bowers v. Social Security Admin., EEOC Appeal No. 01975429 (May
5, 1998). The specific incidents of nonselections raised in some of the
complaints are not being dismissed under allegation 5; such specific
incidents of nonselections are addressed as separate allegations.
Appellant's theory of discrimination can be argued in support of his
claim of discrimination in the specific nonselection allegations.
Allegation 5 by itself, however, does not allege any particular harm
apart from the specific incidents of discrimination which are addressed
in other allegations.
The Commission finds that the agency properly dismissed allegation 6 for
failing to state a claim pursuant to �1614.107(a). Boyer, EEOC Appeal
No. 01971500; Hyza v. Social Security Admin., EEOC Appeal No. 01973821
(June 19, 1998); Sobchak, EEOC Appeal No. 01975467. The Commission
finds that appellant has failed to show how he was harmed by the agency's
purported improper processing of his complaints. The issue of whether
the agency properly defined any particular complaint should be raised
and considered during the processing of the underlying complaint and such
a concern does not form the basis for a separate allegation or separate
complaint.
Regarding allegation 7, the Commission finds that appellant has
alleged a violation of �1614.605(a) which provides that a "complainant
shall have the right to be accompanied, represented, and advised by a
representative of complainant's choice." The Commission finds that if
the agency improperly disqualified appellant's choice for representative,
then the Commission can order the agency to reinstate the improperly
disqualified representative. Binion v. Department of the Air Force, EEOC
Appeal No. 01963870 (Mar. 17, 1997). Therefore, we find that the agency
improperly dismissed allegation 7. See Boyer, EEOC Appeal No. 01971500;
Hyza, EEOC Appeal No. 01973821; Sobchak, EEOC Appeal No. 01975467; Bowers,
EEOC Appeal No. 01975429; see also Johnston v. Department of the Treasury,
EEOC Request No. 05970308 (Dec. 4, 1998) (remanding for decision on denial
of official time to representative); Edwards v. United States Postal
Serv., EEOC Request No. 05960179 (Dec. 23, 1996) (Commission can remedy
an improper denial of official time without a finding of discrimination).
The record provided on this question does not allow us to rule on the
appropriateness of the agency's purported disqualification of appellant's
representative. Therefore, the agency shall issue a new decision which
addresses why appellant's representative was purportedly disqualified.
The agency's decision shall include appeal rights to the Commission.
The agency also found that appellant was discriminated against on the
bases of age, race, and sex when:
Appellant was not selected for the position of GS-343-14, Supervisory
Management Analyst, posted November 29, 1993 via vacancy announcement
number A-398.
Appellant failed to make the best qualified list and was not selected
for the position of GS-334-14, Supervisory Computer Specialist (Systems
Analysis) posted March 20, 1995, via vacancy announcement number X-332.
Appellant was not selected for the position of GS-105-14, Supervisory
Social Insurance Specialist posted April 3, 1995 via vacancy announcement
M-750.
Appellant failed to make the best qualified list and was not selected
for the position of GS-334-14, Supervisory Computer Specialist (Systems
Analyst) posted April 3, 1995 via vacancy announcement number G-2784.
The agency dismissed allegations 8 - 11 for failure to timely contact
an EEO Counselor pursuant to �1614.107(b). The agency stated that
allegations 8 and 9 were raised in 96-0459-SSA and that allegations 10 and
11 were raised in 96-0460-SSA. The Commission finds that allegations
8 - 11 were properly dismissed for untimely EEO Counselor contact
because appellant has not claimed or shown that he was not notified
or not aware of the four nonselections 45 days or less prior to his
initial contact of an EEO Counselor. Appellant has not challenged
the agency's assertion that appellant was notified and/or was aware of
the four nonselections more than 45 days prior to appellant's initial
contact of an EEO Counselor. Allegations 8 - 11 are not timely under
any continuing violation theory because we find that appellant should
have reasonably suspected discrimination at the time of the discrete
nonselections in question which occurred more than 45 days prior to his
initial EEO contact. See Sobchak, EEOC Appeal No. 01975467; Bowers,
EEOC Appeal No. 01975429.
The Commission finds that the agency properly defined the complaints
at issue. Because of our disposition the Commission finds no reason to
address the agency's argument that all allegations except those accepted
for investigation were being dismissed for abuse of process.
The agency's decision dismissing allegations 5, 6, and 8 - 11 is AFFIRMED.
The agency's decision dismissing allegation 7 is REVERSED and we REMAND
allegation 7 to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall issue a new decision addressing why appellant's
representative was purportedly disqualified from representing appellant.
The agency, prior to the issuance of its decision, shall allow appellant
the opportunity to explain why his representative should not have been
disqualified. The decision shall be issued within 30 calendar days of
the date this decision becomes final and shall include appeal rights
to the Commission. A copy of the agency's final decision shall be
transmitted 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
1The agency numbers are: 96-0027-SSA; 96-0167-SSA; 96-0103-SSA;
96-0163-SSA; 96-0198-SSA; 96-0187-SSA; 96-0228-SSA; 96-0296-SSA;
96-0299-SSA; 96-0295-SSA; 96-0297-SSA; 96-0459-SSA through 96-0464-SSA;
96-0466-SSA through 96-0520-SSA.
2The agency found that allegation 5 was raised in each of the 72
complaints. The Commission has renumbered the allegations in the
complaints in the instant decision.