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.