01981596
06-03-1999
William L. Yost, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
William L. Yost v. Social Security Administration
01981596
June 3, 1999
William L. Yost, )
Appellant, )
)
v. ) Appeal No. 01981596
) Agency No. 97-0377-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
___________________________________)
DECISION
The Commission finds that the agency's decision dated November 10, 1997
dismissing a portion of appellant's complaint (allegation 1 - alleging a
"systemic discriminatory policy" against males in the personnel practices
of hiring, rating, awards, and promotions) on the grounds that appellant
failed to state a claim and the remainder of the complaint (allegation 2 -
alleging specific nonselections; allegation 3 - alleging lack of honorary
awards) for failing to timely contact an EEO Counselor is proper pursuant
to 29 C.F.R. �1614.107(a) (failure to state a claim) and �1614.107(b)
(untimely EEO Counselor contact), respectively.
On appeal appellant argues that the agency misdefined the complaint and
that the complaint is "but one allegation" which he defined as:
[D]isparate impact which has resulted from pervasive discrimination
against male employees as a result of an illegal affirmative action
program and a policy of diversity that has been implemented by
discriminating against male employees and documented in its yearly
reports to the EEOC.
Appellant also indicates in appeal that part of his complaint alleged
that the agency has ignored the "systemic continuing violation
theory in an attempt to limit its liability for its illegal conduct
against males maintained by the Agency for the benefit of its female
employees." (emphasis omitted).
The Commission finds that appellant may indeed have been attempting to
allege in his complaint that the agency was improperly processing his
claims of discrimination. The Commission finds that such an allegation
may be a collateral attack on prior agency decisions. The Commission
shall not entertain such a collateral attack. Such concerns about the
improper processing of a complaint should be raised during the processing
of the complaint at issue. Such concerns do not state independent
claims of discrimination. To the extent that appellant's claim about the
agency's failure to recognize the systemic continuing violation theory
applies to the instant complaint, we find that this is simply an argument
in support of appellant's appeal and does not state an independent claim
of discrimination. Therefore, appellant's claims of improper processing
are dismissed for failing to state a claim pursuant to �1614.107(a).
The Commission finds that the agency properly defined allegations 1,
2, and 3 as encompassing the whole complaint apart from any claims of
improper processing. The Commission finds that allegation 1 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 Commission finds that allegations 2 and 3 are properly dismissed
for untimely EEO Counselor contact because all of the incidents that
appellant has cited in allegations 2 and 3 occurred more than 45 days
prior to appellant's initial contact of an EEO Counselor. Allegations
2 and 3 are not timely under the continuing violation theory because
appellant has not shown that any incident in the complaint was timely
raised and because we find that appellant should have reasonably suspected
discrimination at the time of the discrete incidents 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 if allegations 1, 2,and 3 are effectively just
one allegation with the incidents in allegations 2 and 3 constituting
examples of the policy at issue in allegation 1, then we find that such
an allegation is properly dismissed pursuant to �1614.107(b) for untimely
EEO Counselor contact because none of these incidents were timely raised
as explained supra.
The agency's decision dismissing the complaint is AFFIRMED.
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 (S0993)
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. 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