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

Equal Employment Opportunity CommissionAug 3, 2000
05990811 (E.E.O.C. Aug. 3, 2000)

05990811

08-03-2000

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


Michael H. Bostron v. Social Security Administration

05990811

August 3, 2000

Michael H. Bostron, )

Complainant, )

)

v. ) Request No. 05990811

) Appeal No. 01975877

Kenneth S. Apfel, ) Agency No. 97-0224-SSA, et al.<1>

Commissioner, )

Social Security Administration, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

The agency initiated a timely request to the Equal Employment Opportunity

Commission to reconsider the decision in Bostron v. Social Security

Administration, EEOC Appeal No. 01975877 (June 3, 1999).<2> The

Commission, in its discretion, may grant a party's request to reconsider

a decision issued under the regulation set forth at 64 Fed. Reg 37,644,

37,659 (1999) (to be codified as 29 C.F.R. � 1614.405(a)), if the party

demonstrates that:

The appellate decision involved a clearly erroneous interpretation of

material fact or law; or

The decision will have a substantial impact on the policies, practices

or operations of the agency.

64 Fed. Reg 37,644, 37,659 (1999) (to be codified as and hereinafter

cited as 29 C.F.R. � 1614.405(b)).

The instant matter concerns 39 complaints. The agency dismissed the

complaints for stating the same claim as pending before the Commission;

for failure to state a claim; and for abuse of process. The previous

decision found that the agency failed to supply a copy of the EEO

complaint files at issue. The previous decision reversed the agency's

dismissal of the complaints.

In the agency's request to reconsider the previous decision, the

agency has submitted, for the first time, a copy of the administrative

EEO complaint files. The agency has also submitted a copy of a civil

action complaint which the agency argues encompasses the matters raised

in the administrative EEO complaints. The Commission shall reconsider

the previous decision on our own motion.

The Commission finds that the administrative EEO complaints can be fairly

summarized as alleging that complainant was discriminated against on the

bases of age, race, sex, and in retaliation for prior protected activity

when: (1) the agency pursued a continuing systemic discriminatory policy

against all males and particularly white males 40 years of age and older

in hiring, ratings, awards, and promotions; and (2) the agency improperly

processed numerous complaints filed by complainant (including the claim

that complainant has not received fair and impartial EEO counseling).

The copy of the civil action complaint submitted by the agency shows

that the matters raised in the instant complaints are encompassed in

the civil action. Therefore, dismissal of the complaints by the agency

was proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644,

37,656 (to be codified as 29 C.F.R. � 1614.107(a)(3)). There is no

further right of administrative appeal from a decision of the Commission

on a request for reconsideration.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

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:

August 3, 2000

________________ ______________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

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

1The agency numbers are: 97-0224-SSA through 97-0237-SSA; 97-0239-SSA

through 97-0263-SSA.

2On 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.