01995905
07-25-2000
John E. Boyer, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
John E. Boyer v. Social Security Administration
01995905
July 25, 2000
.
John E. Boyer,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01995905
Agency No. 97-0211-SSA
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 6, 1999, dismissing claim (4) of 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> The appeal is accepted for review pursuant
to 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. �
1614.405).<2>
In his complaint, complainant alleged six incidents of discrimination
on the bases of race (Caucasian), sex (male), age, and in reprisal for
prior EEO activity. In a prior decision, the agency dismissed four of
these claims (claims (1)-(3) and (6)), accepted one (claim (5)), and
failed to issue a decision on another (claim (4)). Complainant appealed
to this Commission, and we affirmed the dismissal of claims (1), (2),
(3), and (6). See Boyer v. Social Security Administration, EEOC Appeal
No. 01974910 (April 19, 1999). On July 6, 1999, the agency issued a new
final decision, dismissing claim (4) for failure to state a claim and
for stating a matter �inextricably intertwined� with a claim pending in
federal district court.<3>
As noted in our prior decision (01974910), claim (4) involved, �the
promotion of some females in SSA have violated the X-118 Classification
Standards. As a result, these females now occupy positions which
[complainant] and other males could have been promoted to had not these
rampant discriminatory practices been in place as part of the agency's
affirmative action plan.� In a case filed in the United States District
Court for the District of Maryland, complainant, along with two other
complainants, asserted �that they have been subjected to illegal reverse
discrimination as a result of the SSA's implementation of affirmative
action policies and programs.� Memorandum and Order of August 18,
1999 at 1, Bostron v. Apfel, (H-97-3154) (D. Md.). These claims,
initially filed as a class complaint, concern the agency's failure to
promote white men to GS-13 through GS-15 positions.
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 claim (4) involves the same matters raised with
the United States District Court. Accordingly, the agency's dismissal
of claim (4) is AFFIRMED.<4>
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 25, 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.
2Although the Commission has remanded partially dismissed complaints for
consolidation with accepted claims, we find such action unnecessary in
the present case. Given that the Commission has addressed the claims on
procedural grounds in prior appeals, complainants have filed an action
in federal district court, and other equitable reasons, the Commission
finds that the procedural dismissal of claim (4) should be addressed in
the present decision.
3Claim (5) is pending a decision on its merits, and is not at issue in
the present appeal.
4Since we are affirming the agency's dismissal of claim (4) for addressing
the same matter raised in a federal district court, we will not address
the agency's alternative grounds for dismissal, i.e., failure to state
a claim.