Dong H. Bang, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 21, 1999
01976015_r (E.E.O.C. Jan. 21, 1999)

01976015_r

01-21-1999

Dong H. Bang, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dong H. Bang, )

Appellant, )

) Appeal No. 01976015

v. ) Agency No. IK-221-0081-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On August 2, 1997, appellant filed a timely appeal of a July 17, 1997

final agency decision dismissing allegation (2) of his complaint for

failure to state a claim.

The final agency decision framed the allegations of the April 11, 1997

complaint as whether appellant was discriminated against on the bases of

race (Asian), color (yellow), sex (male), and national origin (Korean)

when on February 9, 1997, the following occurred: (1) appellant and a

group of primarily Asian employees were directed to put away personal

belongings before beginning their tour; (2) appellant's supervisor did not

provide a response as to why another group (non-Asians) was not required

to put their personal belongings away before clocking into work; and

(3) appellant was placed on emergency placement without pay, which cost

appellant 7.75 hours of pay and he was directed not to return to work

until the following day.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall

dismiss a complaint that fails to state a claim under �1614.103.

For a complaint to state a claim, the complainant must be aggrieved.

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). In allegation (2), appellant is merely

elaborating on allegation (1), not raising a separate processable claim.

Therefore, the agency's final decision dismissing allegation (2) of

appellant's complaint is AFFIRMED.

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 (S0993)

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:

Jan. 21, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations