John E. Boyer, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 19, 2000
05a00072 (E.E.O.C. Apr. 19, 2000)

05a00072

04-19-2000

John E. Boyer, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


John E. Boyer v. Social Security Administration

05A00072

April 19, 2000

John E. Boyer, )

Complainant, )

) Request No. 05A00072

v. ) Appeal No. 019800089

) Agency No. 97-0414-SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration, )

Agency. )

____________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On October 15, 1999, John E. Boyer (complainant) initiated a request to

the Equal Employment Opportunity Commission (Commission) to reconsider

the decision in John E. Boyer v. Social Security Administration, EEOC

Appeal No. 019800089 (September 15, 1999).<1> EEOC Regulations provide

that the Commissioners may, in their discretion, reconsider any previous

Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.405(b)).

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's decision dismissing claims one through five in complainant's

complaint.

BACKGROUND

During the period in question, complainant was employed by the Social

Security Administration as a program analyst. Complainant filed a

formal complaint in May 1997 claiming five instances of discrimination

based on his age, race, gender and reprisal for prior EEO activity.

The five claims are described as follows: in January and February of

1997 complainant was denied use of a room for his organization; the

agency has pursued a systematic policy of discrimination against

white males over forty with respect to promotions, awards and performance

evaluations; the agency maintains a list of individuals who file EEO

complaints so as to compromise their abilities to obtain promotions,

awards and high ratings; complainant is unable to obtain proper EEO

counseling because of reverse discrimination within the office; and the

agency denied complainant the representative of his choice by declaring

him ineligible to represent employees in EEO complaints.

The agency, in its final decision, dismissed the above complaint. In the

decision, the agency found that with respect to claims one and three,

complainant failed to state a claim because he did not allege a loss with

regard to a term, condition or privilege of employment. Furthermore,

the agency dismissed claims two, four and five because they were raised

in previous complaints that were currently before the commission.

The Commission's previous decision affirmed the agency's decision to

dismiss the complaint, but affirmed the dismissal of allegation four on

the grounds that it failed to state a claim.

In his request for reconsideration, complainant offers no argument

establishing either a clearly erroneous interpretation of material fact or

law, or that the previous decision will have a substantial impact on the

policies, practices or operations of the agency. Rather, complainant's

statement reiterates the arguments he made on appeal.

The agency responds to complainant's request by stating that he merely

raises the same arguments he made on appeal.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of

the criteria of 29 C.F.R. � 1614.405 is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that the

Commission's scope of review on a request to reconsider is limited.

Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989).

After a review of complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

complainant's request does not meet the criteria of 29 C.F.R. � 1614.405.

Specifically, the complainant has presented no evidence to demonstrate

that the previous decision, dismissing allegation one through five,

was improper.

In the previous decision, claims one, three and four were dismissed for

failure to state a claim. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides,

in relevant part, that an agency shall dismiss a complaint that fails

to state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion, sex,

national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which there is

a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 22, 1994).

With regards to claim one, complainant states he was discriminated

against when his organization was denied the use of a room by the agency

for preparing their EEO complaints. As stated in the previous decision,

this does not cause complainant to be considered an "aggrieved employee"

because he has not suffered a personal harm with respect to term,

condition or privilege of employment from this denial. Therefore,

the previous decision properly dismissed claim one.

With respect to claim three, that the agency maintains a list of employees

who have filed EEO complaints, the Commission finds that the complainant

has only made a generalized grievance on the matter. Specifically,

complainant has failed to show how and when he was injured by such a list.

Therefore, in accordance with Warth v. Seldin, 422 U.S. 490 (1975);

Canfield v. Social Security Administration, EEOC Request No. 05950806 (

December 1, 1997), the agency properly dismissed claim three for failure

to state a claim.

Furthermore, the previous decision also dismissed claim four for failure

to state a claim. However, under the new regulations, claim four is

dismissed pursuant to 64 Fed Reg 37,644, 37,656 (1999) (to be codified

at and hereinafter referred to as 29 C.F.R. � 1614.107(a)(8)), which

provides, the agency shall dismiss a complaint or portion thereof

that alleges dissatisfaction with the processing of a previously

filed complaint. Therefore, since claim four raises that the agency

improperly processed his complaint, claim four is dismissed pursuant

to 29 C.F.R. � 1614.107(a)(8). Thus, the previous decision dismissing

claim four is affirmed.

The Appellate decision further dismissed claims two and five because

they were raised in prior complaints that were currently before the

Commission. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency

shall dismiss a complaint that states the same claim that is pending

before or has been decided by the agency or Commission. With regards to

claim five, complainant alleges that the agency discriminated against

him when they disqualified his choice of representative. The previous

decision found that the same claim was raised in EEOC Appeal No. 01971500

(June 19, 1998).

Therefore, we find no reason to disturb the prior decision dismissing

this claim pursuant to 29 C.F.R. �1614.107(a)(1).

The Commission notes that the previous decision also dismissed claim

two because it was raised in a prior complaint. However, upon review

of the record, the Commission finds that this claim was raised before

The United States District Court For The District of Maryland, Civil

Action No. H97-3154. Volume 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). Accordingly, this claim is dismissed because it has been raised

before a United States District Court.

CONCLUSION

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds complainant's

request does not meet the criteria of 29 C.F.R. � 1614.405(b), and

it is the decision of the Commission to deny complainant's request.

The decision of the Commission in EEOC Appeal No. 019800089 remains the

Commission's final decision. There is no further right of administrative

appeal from a decision of the Commission on a request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

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:

April 19, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

________________ ________________________

Date Equal Employment Assistant

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.