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.