01987059
06-01-2001
Likow S. Chang, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Likow S. Chang v. Defense Logistics Agency
01987059
June 1, 2001
.
Likow S. Chang,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 01987059
Agency No. CA98011
DECISION
Likow S. Chang (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated September 9, 1998 dismissing
his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. In his complaint, complainant alleged that
he was discriminated against on the bases of race (Asian) and national
origin (Chinese) and subjected to retaliation for prior EEO activity
(under Title VII) because the Operations Support Group (DSCC-V) and the
Defense Supply Center at the agency has a discriminatory �Glass Ceiling�
policy against Asian Americans.
The agency dismissed the claim pursuant to EEOC Regulation 1614.107(a)(1),
because it restates a claim that has already been decided by the
agency.<1> Specifically, the agency noted that the glass ceiling
claim was first raised by complainant in Agency No. CA-97-020 and,
while initially dismissed by the agency for failure to state a claim,
was subsequently �recharacterized� and accepted for investigation.
The record establishes that an Administrative Judge (AJ) issued a
recommended decision without a hearing on April 23, 1998, finding no
discrimination on this issue. The agency issued a final decision,
adopting the AJ's finding of no discrimination on June 11, 1998.
It appears from Commission records that complainant did not file an
appeal from this June 11, 1998 FAD.
On appeal, complainant alleges that his glass ceiling allegation has
never been investigated. He notes that when he received the letter
which indicated that his glass ceiling allegation was being redefined, he
responded that the redefinition was not correct. He argues that his claim
is that Asian Americans in DSCC are not allowed to share equitably in
the rewards of the workplace because a limit is placed on the advancement
and mobility opportunities of Asian American employees by DSCC.
A review of the record reveals that complainant first raised the �glass
ceiling� claim in Agency No. CA-97-020 and that the facility's Equal
Employment Manager initially dismissed it for failure to state a claim.
However, the agency's EEO office vacated this dismissal, noting that it
was clear from complainant's complaint that complainant used the phrase
�glass ceiling� to summarize his ongoing efforts to receive an upgrade
and his belief that his failure to accomplish this goal was due to his
race and national origin. The EEO office redefined the dismissed issue
as follows:
You allege that, because of discrimination based on race and national
origin, you were continuously treated less favorably than other employees
as described in allegation (3) below....
(3) Since November 1995, when DSCS merged with DESC to form DSCC, you
have been required to perform electronics engineering duties in addition
to mechanical engineering duties, but have been continuously denied a
position upgrade from GS-12 to GS-13, which you allege was the appropriate
grade once the electronics duties and the other duties not contemplated
when your position was first established in 1991 were added;....
We first note that a generalized observation that a glass ceiling exists
in regard to a certain group does not constitute a personal loss or
harm and therefore does not state a claim. See Little v. Department
of Commerce, EEOC Request No. 05940866 (November 14, 1994). This does
not preclude complaint from pursuing a separate class complaint on
this matter. See id.
Furthermore, we find that a review of the record establishes that in using
the phrase �glass ceiling,� complainant was referring to the agency's
ongoing failure to promote him to a GS-13 position. The formal complaint
reads: �The Operations Support Group (DSCC-V) and Defense Supply Center,
Columbus (DSCC) has a discriminatory �Glass Ceiling' policy against Asian
Americans. Because of my race (Asian) and national origin (Chinese), I
was stopped by management to be promoted at GS-13 level.� Similarly, the
formal complaint in Agency No. CA-97-020 reads, in part, �DSCC practices
a discriminatory �glass ceiling' policy against Asian Americans....� and
requests an upgrade to GS-13 as corrective action for the existence of
this policy. After redefining the claim to concentrate on complainant's
specific claim of failure to promote/upgrade, rather than the general
glass ceiling claim, the agency investigated this issue and issued a
final decision on June 11, 1998.
Accordingly, after a careful review of the record, we find that the
agency properly dismissed this claim and the FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 1, 2001
Date
1 The agency dismissed this claim, but accepted for investigation other
claims raised by complainant in the same formal complaint, Agency
No. CA-98-011. On November 9, 1999, new regulations governing the
administrative processing of Federal sector employment discrimination
complaints became effective. The regulation found at 29 C.F.R. �
1614.107(b) provides that where an agency decides that some but not all
of the claims in a complaint should be dismissed, the agency shall notify
the complainant of its determination; however, this determination is not
appealable until final action is taken on the remainder of the complaint.
We note, however, that the agency issued its partial dismissal prior to
the issuance of these regulations. Moreover, Commission records establish
that those claims that were initially accepted for investigation, have
since been decided in Chang v. Defense Logistics Agency, EEOC Appeal
No. 01A01057 (May 4, 2000). Accordingly, they will not be consolidated
with the subject claim.