05990831
08-03-2000
Michael H. Bostron, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Michael H. Bostron v. Social Security Administration
05990831
August 3, 2000
Michael H. Bostron, )
Complainant, )
)
v. ) Request No. 05990831
) Appeal No. 01990679
Kenneth S. Apfel, ) Agency No. 98-0635-SSA
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
Complainant and the agency timely initiated separate requests to the
Equal Employment Opportunity Commission to reconsider the decision in
Bostron v. Social Security Administration, EEOC Appeal No. 01990679
(June 3, 1999).<1> 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)).
In his complaint, complainant alleged that he was discriminated against
on the bases of age, race, sex, and in retaliation for prior protected
activity, when he was not selected for three positions. Complainant also
alleged that he did not receive fair and impartial EEO counseling, he was
denied his representative of choice, and the agency otherwise improperly
processed his complaints. The agency dismissed the non-selection claims
on the grounds that complainant failed to timely contact an EEO Counselor.
The agency dismissed the improper processing claims for failure to state
a claim.
The previous decision vacated the agency's dismissal of the non-selection
claims. The previous decision found that the record did not show when
complainant was notified of the non-selections. The Commission remanded
the non-selection claims so that the agency could supplement the record
with evidence showing if and when the selections at issue were posted on a
bulletin board. The previous decision found that the improper processing
claim was properly dismissed in part for stating the same claim that was
pending before the Commission and in part for failure to state a claim.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that 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.
In the agency's request to reconsider the previous decision, the
agency has submitted, for the first time, a copy of a civil action
complaint which the agency argues encompasses the matters raised in
the administrative EEO complaint. The Commission shall reconsider
the previous decision on our own motion. The copy of the civil action
complaint submitted by the agency shows that the matters raised in
the instant complaint are encompassed in the civil action. Therefore,
dismissal of the administrative EEO complaint 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)). The decision in
EEOC Appeal No. 01990679 is reversed. 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
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.