01A12208_r
01-14-2003
Michael H. Bostron, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Michael H. Bostron v. Social Security Administration
01A12208
January 14, 2003
.
Michael H. Bostron,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A12208
Agency Nos. 97-0409-SSA, 99-0203-SSA, 99-0213-SSA, 99-0243-SSA,
99-0288-SSA,
00-0031-SSA, 00-0251-SSA, 00-0286-SSA, 00-0392-SSA,
00-0470-SSA, 00-0488-SSA
DECISION
INTRODUCTION AND BACKGROUND
Complainant timely appealed to this Commission from the agency's January
4, 2001 dismissal of his employment discrimination complaints. In its
decision, the agency dismissed all of complainant's pending EEO complaints
for misuse of the EEO process.<1> The dismissal included claims in the
investigative, formal complaint, and pre-complaint (or counseling) stages
at the time of their dismissal. In these complaints, complainant alleged
that he was subjected to discrimination on the bases of race (Caucasian),
sex (male), age, and in reprisal for prior EEO activity, when:
97-0409-SSA
On January 27 and February 13, 1997, the agency denied the use of a
meeting room to an organization known as GMEN (Government Men for Equality
Now), for which complainant is a member of the steering committee.<2>
99-0203-SSA
Complainant was denied administrative leave to prepare for one of his
EEO complaint-related court cases.
Complainant was denied his representative of choice.<3>
99-0213-SSA
Complainant was not selected for the GS-14 EEO Specialist position
advertised under Vacancy Announcement Number (VAN) J-402.
Complainant was not selected for the GS-14 EEO Specialist position
advertised under VAN J-403.
On August 11, 1998, complainant learned that he was not selected for
the GS-14 Program Adviser position advertised under VAN M-812.
On August 6, 1998, complainant learned that he was not selected for the
GS-14 Supervisory Social Insurance Specialist position advertised under
VAN T-469.
On August 10, 1998, complainant learned that he was not selected for a
GS-14 Computer Specialist position advertised under VAN G-2826.
On August 6, 1998, complainant learned that he was not selected for a
GS-14 Supervisory Management Analyst position advertised under VAN D-2444.
On August 11, 1998, complainant learned that he was not selected for a
GS-14 Program Adviser position advertised under VAN M-815.
On August 12, 1998, complainant learned that he was not selected for a
GS-14 Supervisory Social Insurance Specialist position advertised under
VAN P-1101.
On August 6, 1998, complainant learned that he was not selected for a
GS-14 EEO Specialist position advertised under VAN J-401.<4>
99-0243-SSA
Complainant was denied a �Recognition Of Contribution� cash award for
fiscal year 1998.
Complainant was denied his representative of choice.<5>
99-0288-SSA
Complainant was not selected for participation in the agency's Advanced
Leadership Program.
Complainant was denied his representative of choice.<6>
00-0031-SSA
Complainant was not selected for positions advertised under VAN I-879,
H-1864, or U-264.<7>
00-0251-SSA
Complainant was not selected for positions advertised under VAN T-493,
T-502, M-868, A-674, A-675, H-1877, P-1142, P-1147, F-569, A-695,
or U-294.
Complainant was not selected for positions advertised under VAN H-1850,
H-1862, H-1863, V-308, P-1136, or U-272.
Management denied complainant his representative of choice.
Complainant was unable to receive fair counseling.<8>
00-0392-SSA
Complainant was not selected for a GS-14 Statistician position advertised
under VAN H-1894.
Complainant was not selected for a GS-14 Social Insurance Specialist
position advertised under VAN H-1897.
Complainant was not selected for a GS-14 Executive Analyst position
advertised under VAN E-941.
Complainant was denied his representative of choice.
Complainant was unable to receive fair and equitable counseling during
the processing of his complaint.<9>
00-0470-SSA:
Complainant was subjected to a hostile work environment during an
interview for a position advertised under VAN T-513. A member of
the selection panel refused to recuse herself from the selection, and
complainant ultimately was not selected for the position.
Complainant was denied his representative of choice.
Complainant was unable to obtain fair and equitable counseling during
the processing of his complaint.
00-0488-SSA:
On April 25, 2000, complainant's request for administrative leave in order
to attend and testify at the federal district court hearing in Bostron,
et al. v. Apfel, Civil Action No. H-97-3154, was denied.
Complainant was denied his representative of choice.
In its misuse of the EEO process dismissal, the agency contended that
complainant filed an overwhelming number of repetitive complaints.
Specifically, the agency noted that complainant had raised over 146
requests for counseling since 1995, and filed at least 135 formal
complaints. In virtually every complaint, complainant alleged harm from
the denial of his representative of choice, and from not being given �fair
and equitable� EEO Counseling, although the agency provided complainant
with independent, contract EEO Counselors. The agency contends that
complainant filed two �substantially similar� class action cases, and
the Commission refused to certify either. Further, according to the
agency, complainant raised numerous claims already pending in a civil
action filed in Federal District Court for the District of Maryland.
The agency asserts that complainant repeatedly filed numerous separate
complaints on the same day, each requiring separate counseling and
processing, rather than combining the claims into a single complaint.
The agency notes that despite complainant's repeated filing, and the
agency's acceptance and investigation of numerous claims, the Commission
has never found discrimination in any of them.
On appeal, complainant argues that the agency only made broad, general
statements in its decision, and failed to address his specific claims in
its dismissal. Complainant admits many of his claims involve similar
facts, but contends they are not identical in time, place, or parties.
According to complainant, he files a new complaint each time the agency
repeats similar violations of his civil rights. Further, he contends
that he has only filed 19 formal complaints since 1997, and only 5 since
�misuse of the EEO process� was added as an explicit basis for dismissal
under EEOC Regulations in November 1999. According to complainant,
the agency has refused to investigate many of his claims. He denies any
abuse of process, and requests that all of his claims be accepted and
forwarded to an EEOC Administrative Judge for a hearing.
ANALYSIS AND FINDINGS
The agency may dismiss complaints that exhibit a clear pattern of
misuse of the EEO process for a purpose other than the prevention and
elimination of employment discrimination. 29 C.F.R. � 1614.107(a)(9).
A clear pattern of abuse of process requires: (i) Evidence of multiple
complaint filings; and (ii) Allegations that are similar or identical,
lack specificity or involve matters previously resolved; or (iii)
Evidence of circumventing other administrative processes, retaliating
against the agency's in-house administrative processes or overburdening
the EEO complaint system. Id.
When dismissing cases for misuse of the EEO process, the agency must
strictly adhere to Commission case law regarding abuse of process. Id.
Application of the misuse of the EEO process standard must be rare,
because of the strong policy in favor of preserving a complainant's
EEO rights whenever possible. Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-17, (November 9, 1999)
(citing Love v. Pullman, Inc., 404 U.S. 522 (1972)); Wrenn v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01932105 (August
19, 1993).
Complainant has filed a very large number of complaints, but the majority
of his pending claims concern individual nonselections. Complainant
applied for each of these jobs, was rated as qualified for the majority
of these positions, but was not selected.<10> This is not evidence of
misuse of the EEO process. See Black v. Small Business Administration,
EEOC Appeal No. 01A10586 (March 19, 2002) (misuse of the EEO process
dismissal improper for complaints involving mostly distinct, individual
nonselections). Additionally, several of the complaints dismissed by the
agency concern claims the Commission already has reviewed and remanded
for an investigation.
Although the Commission finds insufficient evidence that complainant
has misused the EEO process, it notes that complainant is very close to
such a finding in several respects. Complainant's formal complaints,
beyond simply identifying the issues and bases, are often voluminous,
convoluted documents with over 150 pages. In these documents,
complainant refers to the same statistical evidence and Affirmative
Employment plans to prove a �pattern and practice� of discrimination
for each nonselection, although the federal courts addressed this issue
and evaluated the statistical evidence in Bostron, et al. v. Apfel,
104 F. Supp. 2d 548 (D. Md. 2000), affirmed in 2 Fed. Appx. 235 (4th
Cir. January 18, 2001), cert den., 122 S.Ct. 218 (October 1, 2001).
Any future attempt by complainant to attempt to raise these issues as
separate claims of discrimination should be construed as an attempt to
overburden the EEO process. Such �evidence� is properly raised during
the investigative stage and/or at the hearing stage.
Complainant also repeats two claims in virtually every complaint he
files: (a) complainant is denied his representative of choice; and
(b) complainant is unable to obtain fair and equitable EEO Counseling.
Claim (a) should not be raised as a separate claim of discrimination,
but should be raised with the agency's EEO office and, if still
necessary, with an EEOC Administrative Judge during a hearing and with
the Commission in a subsequent appeal. If complainant further raises the
claim regarding being denied a representative as a separate claim in his
complaint rather than through the alternative scenarios just described,
then complainant's complaints might be appropriately dismissed for misuse
of the EEO process. The Commission further notes that the agency has
repeatedly dodged this issue. The Commission has remanded claim (a)
in several appeals, finding the agency's reasoning insufficient, but
the agency continues to dismiss it with the same rejected reasoning.
The agency has failed to show how it would be a conflict of interest
for complainant's representative of choice, a team leader, to represent
complainant, who also is a team leader. They have failed to provide
evidence that the representative's duties create a conflict for him to
represent anyone in the process. The agency also has not presented
evidence that complainant and his chosen representative are in the
same chain-of-command, report to the same officials, or other indicia
of a conflict. While we do not decide today whether complainant has
been wrongfully denied his representative of choice, we do not find it
improper, at this point in time, for complainant to continually raise that
argument during the processing of his complaints. Any future attempts
to turn that argument into a separate claim, however, will from now on
constitute misuse of the EEO process.
To the extent complainant alleges harm from the processing of past
complaints, the agency could have disposed of these claims pursuant
to 29 C.F.R. � 1614.107(a)(8). Complainant, however, takes issue with
the processing of his pending complaint. The agency's duties in this
circumstance are outlined in the Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-25 - 5-26 (November
9, 1999). The Commission notes, however, that repeatedly raising this
claim without providing any specific information regarding the perceived
shortcomings of the EEO Counseling, beyond the meaningless fact that the
agency's EEO Office is staffed largely by minorities, may also give rise
to an inference of misuse of the EEO process.
CONCLUSION
Accordingly, the agency's abuse of process dismissal is REVERSED, and
the complaints are REMANDED for further processing.<11>
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 14, 2003
__________________
Date
1The agency lists Agency No. 98-0618 as being
dismissed by its abuse of process decision. However, the administrative
processing for Agency No. 98-0618 already has concluded � the Commission
addressed all of the issues raised in this complaint in Bostron v. Social
Security Administration, EEOC Appeal No. 01990678 (June 31, 1999)
(reversing a portion of agency's dismissal), recons. granted, EEOC
Request No. 05990785 (October 15, 2000) (affirming agency's dismissal
of entire complaint).
2This issue is the only live claim remaining in Agency No. 97-0409-SSA;
complainant raised additional claims in this complaint, but the Commission
adjudicated these issues in EEOC Appeal No. 01977021 (June 3, 1999),
req. for recons. den., EEOC Request No. 05A00090 (August 22, 2000).
3The agency issued a partial dismissal of this claim, which complainant
appealed in EEOC Appeal No. 01993990. As a result of November 1999
regulation changes prohibiting the fragmentation of complaints,
the Commission remanded the entire complaint for investigation, and
administratively closed the appeal.
4The agency issued a dismissal of claims (6) - (12), which complainant
appealed in EEOC Appeal No. 01993989. As a result of November 1999
regulation changes prohibiting the fragmentation of complaints,
the Commission remanded the entire complaint for investigation, and
administratively closed the appeal.
5The agency issued a dismissal of this claim, which complainant appealed
in EEOC Appeal No. 01994430. As a result of November 1999 regulation
changes prohibiting the fragmentation of complaints, the Commission
remanded the entire complaint for investigation, and administratively
closed the appeal.
6The agency issued a dismissal of this claim, which complainant appealed
in EEOC Appeal No. 01994613. As a result of November 1999 regulation
changes prohibiting the fragmentation of complaints, the Commission
remanded the entire complaint for investigation, and administratively
closed the appeal.
7The agency's dismissal of additional claims was affirmed in EEOC Appeal
No. 01A01458 (July 24, 2000).
8In a prior notice of partial acceptance/dismissal, the agency accepted
claim (18) for investigation, but dismissed claim (19) for untimely
counselor contact and claims (20) - (21) for stating the same claim raised
in a civil action. The agency, however, is not now asserting any grounds
for dismissal except misuse of the EEO process under � 1614.107(a)(9).
9In a prior notice of partial acceptance/dismissal, the agency accepted
claims (22) - (24) for investigation, but dismissed claims (25) and (26).
The agency, however, is not now asserting any grounds for dismissal
except misuse of the EEO process under � 1614.107(a)(9).
10If the agency identified a trend of complainant applying for positions
for which he clearly was not qualified, in order to file an EEO complaint
when he was not selected, then the Commission would revisit the issue
of misuse of the EEO process.
11Since the agency failed to address the dismissal of complainant's
claims on any alternative grounds in its January 4, 2001 decision, the
Commission will not entertain any such issues. Further, the Commission
expresses no opinion in the present decision whether complainant's claims
may be dismissed for having been raised in a civil action.