05990814
11-08-2000
Michael H. Bostron, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Michael H. Bostron, )
Complainant, )
)
v. ) Request No. 05990814
) Appeal No. 01983934
Kenneth S. Apfel, ) Agency Nos. 98-0215-SSA
Commissioner, ) 98-0300-SSA
Social Security Administration, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
The agency initiated a timely request to the Equal Employment Opportunity
Commission to reconsider the decision in Bostron v. Social Security
Administration, EEOC Appeal No. 01983934 (June 3, 1999).<1> The
Commission, in its discretion, may grant a party's request to reconsider
a decision issued under the regulation set forth at 64 Fed. Reg 37,644,
37,659 (1999) (to be codified as 29 C.F.R. � 1614.405(a)), if the party
demonstrates that:
The appellate decision involved a clearly erroneous interpretation of
material fact or law; or
The decision will have a substantial impact on the policies, practices
or operations of the agency.
64 Fed. Reg 37,644, 37,659 (1999) (to be codified as and hereinafter
cited as 29 C.F.R. � 1614.405(b)).
In his complaints, complainant alleged that he was discriminated against
when the agency pursued a continuing systemic discriminatory policy
against all males and particularly White males 40 years of age and older
in hiring, ratings, awards, and promotions. Complainant alleged that as a
result of this policy, he was not selected for 12 positions. The agency
dismissed the complaint on the grounds that the matter in the complaint
was the basis of a civil action pending in a United States District Court.
The previous decision found that the agency failed to supply a copy of
the complaint for agency number 98-0215-SSA or a copy of the civil action
at issue. The previous decision reversed the dismissal of the complaint.
In the agency's request to reconsider the previous decision, the agency
has submitted, for the first time, a copy of the complaint for 98-0215-SSA
and a copy of the civil action complaint. The Commission shall reconsider
the previous decision on our own motion. The copy of the civil action
complaint submitted by the agency shows that the matters raised in
the instant complaints are encompassed in the civil action. Therefore,
dismissal of the administrative EEO complaints by the agency was proper
pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656
(to be codified as 29 C.F.R. � 1614.107(a)(3)). There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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:
November 8, 2000
________________ ______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ DATE
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.