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

Equal Employment Opportunity CommissionApr 28, 2000
01984195 (E.E.O.C. Apr. 28, 2000)

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.