01a00757
07-25-2000
Michael H. Bostron, et al. Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Michael H. Bostron, et al. v. Social Security Administration
01A00757, 01A01487
July 25, 2000
.
Michael H. Bostron, et al.
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Appeal Nos. 01A00757
01A01487
Agency Nos. 99-0085-SSA
99-0487-SSA
Hearing No. 120-99-6250X
DECISION
Complainant filed a formal complaint of discrimination alleging violations
of Title VII of the Civil Rights Act of 1964 (Title VII), 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 this complaint,
dated November 25, 1998, complainant sought to represent a class of all
currently employed GS/GM-13 Caucasian male employees who from September
8, 1997 to the present competed for promotion to GS/GM-14 positions
ultimately filled by females or �non-white male[s].� Complainant also
raised individual claims on the bases of race (Caucasian), sex (male),
age, and in reprisal for prior EEO activity when<2>:
Complainant was not selected for the GS-14 Executive Officer position
advertised under Vacancy Announcement No. A-608;
Complainant was not selected for the GS-14 Social Insurance Specialist
position advertised under Vacancy Announcement No. U-222;
Complainant was not selected for the GS-14 Supervisory Insurance
Specialist Position advertised under Vacancy Announcement No. U-224;
Complainant was not selected for the GS-14 Social Insurance Specialist
position advertised under Vacancy Announcement No. U-225;
In addition to the non-selections listed above, complainant has not been
selected for more than 215 GS-14 positions since August 1982 due to the
agency's pervasive sex, race, and/or age discrimination against him;
All of the above-cited agency misconduct has denied complainant the
above-listed promotions, has caused him financial damage, has held him
up to ridicule, has denied him employment rights, has subjected him to
a hostile work environment, terminated his career in the early 1980's,
has denied him the enjoyment of his career, and has caused him great
emotional pain and suffering;
Complainant was not selected for the GS-14 Computer Specialist position
advertised under Vacancy Announcement No. Z-324;
Complainant was not selected for the GS-14 Program Analyst position
advertised under Vacancy Announcement No. U-226;
Complainant was not selected for the GS-14 Execution Officer position
advertised under Vacancy Announcement No. A-619; and
Complainant was not selected for the GS-14 Management Analyst position
advertised under VAN A-620.
The class claim was forwarded to an EEOC Administration Judge (AJ) for a
certification determination (EEOC Hearing No. 120-99-6250X). In a July
12, 1999 decision, the AJ dismissed the class claims for alleging the same
matters already dismissed by the Commission in several prior complaints.
The AJ also found that the claim was raised in the United States District
Court for the District of Maryland in Bostron v. Apfel, No. H-97-3154.
On September 9, 1999, the agency adopted the AJ's findings and dismissed
the class complaint. Concerning complainant's individual claims,
the agency accepted claims 1 - 4 for investigation, but dismissed the
remainder of the complaint. Specifically, the agency dismissed claim
5 for untimely counselor contact, noting that complainant had knowledge
of his non-selections and could have raised them in any of his 150 prior
EEO complaints. Claims 6 - 10 were dismissed for stating the same claim
raised in federal district court.
Complainant appealed the agency's dismissal to this Commission on October
25, 1999 (Appeal No. 01A00757). Meanwhile, the agency issued a new final
decision on October 18, 1999, dismissing claims 1 - 4 for stating the
same claims raised in federal district court. Complainant appealed the
new decision on December 1, 1999 (Appeal No. 01A01487). The Commission
accepts both appeals as timely.<3> Further, the Commission consolidates
both appeals in the present decision pursuant to its discretion under 64
Fed. Reg. 37,644, 37,661 (1999) (to be codified as 29 C.F.R. � 1614.606).
In a case filed in the United States District Court for the District
of Maryland, complainant, along with two other individuals, asserted
�that they have been subjected to illegal reverse discrimination as
a result of the SSA's implementation of affirmative action policies
and programs.� Memorandum and Order of August 18, 1999 at 1, Bostron
v. Apfel, (H-97-3154) (D. Md.). These claims, initially filed as a
class complaint, concern the agency's failure to promote white men to
GS-13 through GS-15 positions.
Complainant also raised individual claims in the civil action, alleging
that he was rejected for over 150 positions. See Complaint of September
16, 1997 at 5, Bostron v. Apfel (H-97-3154) (D. Md.). The Court found
that complainant's allegations concerned a �systematic pattern and
practice of discrimination� from non-promotions, and that his �claims
based on similar incidents both before and after the denial of July 19,
1998, are also actionable. . . .� Memorandum and Order of December 2,
1999 at 8, Bostron v. Apfel (H-97-3154) (D. Md.).
ANALYSIS AND FINDINGS
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 complainant's class claim, and his individual
non-selection claims, have been raised in United States District Court.
Accordingly, the agency's dismissals are 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 25, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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.
2Although filed in the same complaint, agency identified the class
claim as Agency No. 99-0085-SSA, and the individual claims as Agency
No. 99-0487-SSA.
3The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissals. Accordingly, since the agency failed
to submit evidence of the date of receipt, the Commission presumes that
complainant's appeals were filed within thirty (30) days of receipt of
the agency's dismissal. See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.402).