Michael H. Bostron, Complainant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01a01458 (E.E.O.C. Jul. 24, 2000)

01a01458

07-24-2000

Michael H. Bostron, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Michael H. Bostron v. Social Security Administration

01A01458

July 24, 2000

.

Michael H. Bostron,

Complainant,

v.

Kenneth S. Apfel,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A01458

Agency No. 00-0031-SSA

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated October 27, 2000, dismissing 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> In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (Caucasian), sex

(male), age, and in reprisal for prior EEO activity when:

Complainant was not selected for a GS-14 Supervisory Management Analyst

position, advertised under Vacancy Ann. No. I-879;

Complainant was not selected for a GS-14 Program Analyst position,

advertised under Vacancy Ann. No. H-1864;

Complainant was not selected for a GS-14 Program Analyst position

advertised under Vacancy Ann. No. U-264;

Complainant was denied his choice of representatives;

Management failed to do adverse impact studies per The Uniform Guidelines

on Employee Selection Procedures; and

Management affords preferential treatment of women and minorities,

and has undertaken a pervasive discriminatory policy against white males.

The agency accepted claims (1) - (3), but dismissed claims (4) - (6) for

stating the same claims raised in federal district court. On appeal,

complainant argues that the incidents alleged in the present complaint

involve different facts, and occurred during a different time period

than those raised in federal court.

The record includes a copy of several orders from Bostron v. Apfel,

Civil Action No. H-97-3154, filed in the United States District Court

for the District of Maryland. From the memoranda and orders filed with

this case, it clearly encompasses, inter alia, management's preferential

treatment of minorities and �illegal reverse discrimination as a result

of the [agency's] implementation of affirmative action policies and

programs.� Memorandum and Order of August 18, 1999 at 1, Bostron v. Apfel

(H-97-3154). This claim required extensive discovery of promotion

statistics and reports. It also involved a co-worker's receipt of

a written directive ordering him to stop representing complainant �in

current and future EEOC complaints.� Plaintiffs' Class Action Complaint

of September 16, 1997 at 16, Bostron v. Apfel (H-97-3154).

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 raised in claims (4) - (6) have

been the subject of litigation in federal court.<2> 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 24, 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.

2The Commission has remanded partially dismissed claims to be consolidated

with the accepted portions of the complaint. However, the Commission

finds it appropriate to address the dismissed claims given the existence

of a civil action in federal district court, and other equitable factors.