01984195
04-28-2000
Dong H. Bang, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dong H. Bang v. United States Postal Service
01984195
April 28, 2000
Dong H. Bang, )
Complainant, )
)
v. ) Appeal No. 01984195
) Agency No. 1K-221-0048-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant 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.<1> Complainant received the final agency decision
on April 20, 1998. The appeal was received by the Commission on May 4,
1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds of failure to state a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on February 5, 1998.
In a formal EEO complaint dated March 5, 1998, complainant claimed that he
was discriminated against in reprisal for his previous EEO activity when:
1. Continuing from January 31, 1998, the agency failed to provide him
with a reasonable amount of official time to prepare for a hearing and
conduct discovery.
2. On February 28, 1998, his request for official time on March 2, 1998,
March 5, 1998, and March 6, 1998 for a settlement conference on March 31,
1998 was denied.
In its final decision, the agency dismissed the complaint on the grounds
that it failed to state a claim. The agency determined that complainant
failed to provide any evidence that he suffered a personal loss or
harm with respect to a term, condition, or privilege of his employment.
According to the agency, complainant's supervisor provided complainant
with time to work on his cases, but he also requested that complainant
inform him in writing about what he needed to do. The agency noted that
the supervisor also stated that he will not grant complainant a blanket
request for six hours of official time on a weekly basis to work on
his cases.
On appeal, complainant contends that he wrote a memorandum to his
supervisor in which he explained his need for official time. According
to complainant, he was denied a reasonable amount of time to read two
investigations of approximately 200 pages and provide his representative
with interrogatories, facts, a request for documents, and stipulations.
Complainant argues that due to his prior EEO activity, he has been
singled out by management for stricter treatment. Complainant maintains
that a conspiracy exists to harass him and subject him to a hostile work
environment so that other employees will be intimidated from utilizing
the EEO process.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. �1614.107(a)(1)) 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 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 22, 1994).
In the present case, complainant claimed that he was discriminated
against when the agency failed to provide him with a reasonable amount
of official time to prepare for a hearing and conduct discovery, and
his request for official time to prepare for a settlement conference
was denied. We find that complainant has identified an injury, i.e.,
the denial of a reasonable amount of official time. EEOC Regulation 29
C.F.R. �1614.605(b) provides that a complainant shall have a reasonable
amount of official time, if otherwise on duty, to prepare the complaint
and to respond to agency and EEOC requests for information. Upon
review, we find that this case is controlled by the decision in Edwards
v. USPS, EEOC Request No. 05960179 (December 23, 1996). In Edwards, the
complainant alleged that she was discriminated against in retaliation for
prior EEO activity when she was denied official time. The Commission,
noting 29 C.F.R. �1614.605(b), held that it had the authority to remedy
a violation of 29 C.F.R. �1614.605 without a finding of discrimination.
The Commission held that such claims of a regulation violation should
not be processed in accordance with 29 C.F.R. �1614.108, since the focus
is not on the motivation, but rather the justification on whether the
complainant was denied a reasonable amount of requested official time.
Consequently, in the instant case, we find that the agency's dismissal
of the complaint was in error. A determination must now be made whether
complainant was improperly denied a reasonable amount of official time.
Consequently, we hereby VACATE the final agency decision and REMAND
this matter to the agency for further processing in accordance with the
Order below.
ORDER
The agency shall take the following actions:
1) The agency shall investigate the issue of whether complainant was
denied a reasonable amount of official time. The agency shall include
in the record documentation showing how much time was requested, for what
stated purpose, how much time was granted, if any, and the justification
for the denial of any requested time;
2) The agency shall notify complainant of the opportunity to place
into the record any evidence supporting his claim that he was denied a
reasonable amount of official time; and
3) The agency, within ninety (90) calendar days of the date this decision
becomes final, shall issue a decision as to whether complainant was
denied a reasonable amount of official time. The agency's decision
shall provide appeal rights to this Commission.
A copy of the decision must be submitted to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. ��1614.407, 1614.408) and 29 C.F.R. �1614.503(g).
Alternatively, the complainant 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. ��1614.407 and 1614.408. 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 complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
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 (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
April 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
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.