01982099
03-16-1999
Alick R. Shang, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alick R. Shang v. United States Postal Service
01982099
March 16, 1999
Alick R. Shang, )
Appellant, )
)
v. ) Appeal No. 01982099
) Agency No. 1-K-221-0175-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final agency decision was issued on December
11, 1997. The appeal was postmarked January 12, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on June 30, 1997.
On October 23, 1997, appellant filed a formal EEO complaint wherein
he alleged that he was discriminated against on the bases of his race
(Asian), national origin (Chinese), and in reprisal for his previous
EEO activity when:
1. On June 5, 1997, he was suspended, falsely accused, and denied union
representation.
2. On June 29, 1997, he was issued a letter of warning for unsatisfactory
performance/failure to follow instructions.
Appellant requests as relief in part that he receive compensatory
damages for the emotional distress he suffered as a result of the alleged
actions.
In its final decision, the agency dismissed appellant's complaint on
the grounds of failure to state a claim. The agency determined as
to allegation 1 that appellant failed to establish that he suffered a
personal loss or harm with respect to a term, condition, or privilege
of his employment. Specifically, the agency stated that appellant was
not suspended and he did not lose any pay on June 5, 1997. The agency
determined that appellant had the opportunity on June 5, 1997, to see a
union official. Further, the agency determined that appellant did not
establish that he was harmed by his supervisor speaking to him in the
alleged manner. With regard to allegation 2, the agency stated that
the letter of warning was reduced to an official discussion pursuant to
a grievance settlement on July 28, 1997.
On appeal, appellant argues that on June 5, 1997, he was suspended,
escorted from his work facility, and denied access to a union
representative while he was still officially on duty. Appellant maintains
that he was humiliated and that he suffered much emotional damage.
With regard to the letter of warning, appellant claims that the grievance
was settled despite his objection. Appellant further contends that an
official discussion is a form of disciplinary action.
In response, the agency asserts that appellant was not suspended and
he did not lose any pay. The agency notes that appellant acknowledges
that he was paid for any time he was off and that the letter of warning
was removed. The agency asserts that appellant is no longer aggrieved
by any management action(s) that occurred.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Appellant alleged that he was discriminated against when he was suspended,
falsely accused, denied union representation, and issued a letter
of warning. The agency determined in its final decision that these
allegations failed to state a claim. With regard to allegation 1, we
note that the parties are in dispute as to whether appellant was actually
suspended and denied access to a union representative. While the agency
asserts that these actions did not occur, there is no evidence of record
to substantiate this assertion, which appellant disputes. Accordingly,
based on the present record, we find that allegation 1 states a claim.
The agency's decision to dismiss allegation 1 is REVERSED.
With regard to allegation 2, we note that both parties acknowledge that
the letter of warning was reduced to an official discussion pursuant
to a grievance settlement. The Commission has previously held that
a letter of warning reduced to a discussion no longer constitutes
a disciplinary action. Yeats v. United States Postal Service, EEOC
Request No. 05940605 (October 27, 1994); Gafforino v. United States
Postal Service, EEOC Request No. 05910847 (December 30, 1991). Further,
the Commission has consistently held that official discussions alone do
not render an employee aggrieved. See Miranda v. United States Postal
Service, EEOC Request No. 05920308 (June 11, 1992); Devine v. United
States Postal Service, EEOC Request Nos. 05910268, 05910269, and 05910270
(April 4, 1991). Consequently, the agency correctly dismissed allegation
2 on the grounds of failure to state a claim.
CONCLUSION
The agency's decision to dismiss allegation 1 is hereby REVERSED.
Allegation 1 is hereby REMANDED to the agency for further processing
in accordance with the ORDER below. The agency's decision to dismiss
allegation 2 is hereby AFFIRMED.
ORDER (E1092)
The agency is ORDERED to process allegation 1 in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that
it has received allegation 1 within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.