Estate of An-Ti Chai, Appellant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
05990869 (E.E.O.C. Nov. 8, 1999)

05990869

11-08-1999

Estate of An-Ti Chai, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.


Estate of An-Ti Chai v. National Aeronautics and Space Administration

05990869

November 8, 1999

Estate of An-Ti Chai, )

Appellant, )

)

v. ) Request No. 05990869

) Appeal No. 01984452

Daniel S. Goldin, ) Agency No. NCN-98-LeRC-A016,

Administrator, )

National Aeronautics and )

Space Administration, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On July 10, 1999, the Estate of An-Ti Chai (hereinafter referred to as

the appellant)<1> timely initiated a request to the Equal Employment

Opportunity Commission (Commission) to reconsider the decision in

Estate of An-Ti Chai v. National Aeronautics and Space Administration,

EEOC Appeal No. 01984452 (June 14, 1999). EEOC regulations provide that

the Commission may, in its discretion, reconsider any previous decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, the

appellant's request is denied. However, the Commission exercises its

discretion and reconsiders the previous decision on its own motion

ISSUE PRESENTED

The issue presented is whether the agency correctly identified claim 2

and then dismissed it for failure to state a claim

BACKGROUND

The complaint of Dr. Chai (hereinafter referred to as the complainant)

alleged discrimination based on his race, national origin, and retaliation

regarding two non-promotion claims. The first claim involved a dual

ladder promotion package. The second claim concerned the changing of

a vacant position from a Senior Scientist position to a Science Manager

position. As to the second claim, the complaint stated:

The complainant believes that the motivation of this position change

... is to block all possible avenue of professional advancement for the

complainant. They know he is highly qualified for a senior scientist

position, and they know also that it would be difficult for them to

reject his application if such a position were posted.

The final agency decision accepted the first claim for investigation.

The agency decision defined the second claim as alleging that:

Management attempted to block all avenues of advancement to the position

of Senior Scientist for the Microgravity Fluids Branch by changing the

title of the position to Science Manager when the vacancy announcement

for the position was posted.

The agency decision dismissed the second claim for failure to state a

claim, finding that the appellant lacked standing to bring the claim

because he had not applied for the position, citing Owen v. Social

Security Administration, EEOC Request No. 05950865 (December 11, 1997).

On appeal, the complainant contended that claim 2 should be read as

follows:

Because of your race (Asian), [n]ational origin (Chinese), and in

retaliation for having filed previous discrimination complaints

[m]anagement completely and unequivocally ignored a request for an

evaluation document that would state the reasons why the Duties and

Responsibilities for the position was changed. As a consequence of this

action (non-action) it was an implied directive for the [a]ppellant not

to apply for the vacancy.

The previous decision accepted the redefinition of claim 2 but found

that the revised claim 2 did not state a claim because the appellant

did not claim that he had applied for the vacancy or did not show that

he was not allowed to apply for the vacancy.

The appellant requests reconsideration of the previous decision,

contending that the appeal concerned only the definition of claim 2,

not the dismissal. The appellant also contends that it has never had

the opportunity to address whether claim 2, as redefined, states a claim.

The agency responds that the appellant's request does not satisfy any

of the criteria for reconsideration. The agency also contends that the

previous decision should be affirmed.

ANALYSIS AND FINDINGS

After a review of the appellant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c),

and it is the decision of the Commission to deny the appellant's request.

As to the appellant's request contentions, the Commission observes

that the complainant stated in his letter of May 27, 1998, that he was

appealing the dismissal of claim 2. The Commission also observes that

the appellant has had an opportunity in its request statement to present

its contentions that claim 2, as redefined, states a claim.

The Commission exercises its discretion and reconsiders the previous

decision on its own motion because the Commission finds, contrary to the

previous decision, that the final agency decision properly defined claim

2. The Commission also finds that claim 2, as properly defined, states a

non-promotion claim. The complaint alleges that for discriminatory and

retaliatory reasons, the agency changed a vacancy from Senior Scientist

to Science Manager in order to block the complainant from advancement,

i.e., to deny the appellant a promotional opportunity.

The Commission also finds that the agency's reliance on the Owen decision

is misplaced. In Owen, the complainant alleged that he was not promoted

to a GS 13 position during a ten year period. However, he did not

identify a single vacancy for which he had applied and was not selected.

The Commission found that under those circumstances, the complainant

did not have standing to raise a non-promotion claim. In contrast,

the complainant in the instant case identified a specific promotional

opportunity for which allegedly he would have been exceptionally well

qualified but for the agency's changing of the vacancy from a technical

position to a managerial position.

The Commission notes that the agency contended on appeal that the

complainant had not raised claim 2, as redefined, with the EEO counselor.

However, the agency concedes in its request statement that the complainant

discussed the changing of the Senior Scientist's position's title and

duties with the EEO counselor.

CONCLUSION

After a review of the appellant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c),

and the request is hereby DENIED. The Commission, however, exercises

its discretion and reconsiders the previous decision on its own motion.

The decision in EEOC Appeal No. 01984452 (June 14, 1999) is hereby

REVERSED. The final agency decision on claim 2 is hereby REVERSED.

Claim 2 is remanded to the agency for further processing in accordance

with this decision and the Order below. There is no further right of

administrative appeal from the decision of the Commission on this request

for reconsideration.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations 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.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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. 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 (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:

11/08/1999

_______________ __________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 Dr. Chai died on July 2, 1998.