01a01458
07-24-2000
Michael H. Bostron, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Michael H. Bostron v. Social Security Administration
01A01458
July 24, 2000
.
Michael H. Bostron,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A01458
Agency No. 00-0031-SSA
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 27, 2000, dismissing 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 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> In his complaint, 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:
Complainant was not selected for a GS-14 Supervisory Management Analyst
position, advertised under Vacancy Ann. No. I-879;
Complainant was not selected for a GS-14 Program Analyst position,
advertised under Vacancy Ann. No. H-1864;
Complainant was not selected for a GS-14 Program Analyst position
advertised under Vacancy Ann. No. U-264;
Complainant was denied his choice of representatives;
Management failed to do adverse impact studies per The Uniform Guidelines
on Employee Selection Procedures; and
Management affords preferential treatment of women and minorities,
and has undertaken a pervasive discriminatory policy against white males.
The agency accepted claims (1) - (3), but dismissed claims (4) - (6) for
stating the same claims raised in federal district court. On appeal,
complainant argues that the incidents alleged in the present complaint
involve different facts, and occurred during a different time period
than those raised in federal court.
The record includes a copy of several orders from Bostron v. Apfel,
Civil Action No. H-97-3154, filed in the United States District Court
for the District of Maryland. From the memoranda and orders filed with
this case, it clearly encompasses, inter alia, management's preferential
treatment of minorities and �illegal reverse discrimination as a result
of the [agency's] implementation of affirmative action policies and
programs.� Memorandum and Order of August 18, 1999 at 1, Bostron v. Apfel
(H-97-3154). This claim required extensive discovery of promotion
statistics and reports. It also involved a co-worker's receipt of
a written directive ordering him to stop representing complainant �in
current and future EEOC complaints.� Plaintiffs' Class Action Complaint
of September 16, 1997 at 16, Bostron v. Apfel (H-97-3154).
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(3)) allows for
the dismissal of a complaint that is pending in a United States District
Court in which the complainant is a party. Commission regulations
mandate dismissal of the EEO complaint under these circumstances so as to
prevent a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, and creating
the potential for inconsistent or conflicting decisions, and in order
to grant due deference to the authority of the federal district court.
See Shapiro v. Department of the Army, EEOC Request No. 05950740 (October
10, 1996); Stromgren v. Department of Veterans Affairs, EEOC Request
No. 05891079 (May 7, 1990); Kotwitz v. United States Postal Service,
EEOC Request No. 05880114 (October 25, 1988).
The Commission finds that the matters raised in claims (4) - (6) have
been the subject of litigation in federal court.<2> Accordingly, the
agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (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, Acting Director
Office of Federal Operations
July 24, 2000
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.
2The Commission has remanded partially dismissed claims to be consolidated
with the accepted portions of the complaint. However, the Commission
finds it appropriate to address the dismissed claims given the existence
of a civil action in federal district court, and other equitable factors.