Michael H. Bostron, Complainant,v.Agency.

Equal Employment Opportunity CommissionJul 26, 2000
01a01673 (E.E.O.C. Jul. 26, 2000)

01a01673

07-26-2000

Michael H. Bostron, Complainant, v. Agency.


Michael H. Bostron v. Social Security Administration

01A01673

July 26, 2000

.

Michael H. Bostron,

Complainant,

v.

Agency.

Appeal No. 01A01673

Agency Nos. 99-0418-SSA, 99-0476-SSA, 99-04-506-SSA

DECISION

Based on a review of the record, we find that the agency properly

dismissed complainant's complaint for stating the same claim raised in

a civil action pending in United States District Court.<1> Complainant

alleged that he was subjected to discrimination on the bases of race

(Caucasian), sex (male), and age when the agency refused to select

complainant for numerous positions, denied his choice of representative,

failed to do adverse impact studies per �UGESP,� afforded preferential

treatment of women and minorities, and undertook a pervasive

discriminatory policy against white males.

The record reveals that on August 24, 1999, complainant filed a civil

action in United States District Court for the District of Maryland,

Civil Action No. H-97-3194, concerning a pattern of non-selection,

and the matters listed above.

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 addressed in the present complaint

are also the subject of a civil action. 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 26, 2000

___________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________

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.