05980300_05980913
10-16-2000
Ming-Chiang Li, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Ming-Chiang Li v. Department of the Navy
05980300; 05980913; 05990090
10-16-00
.
Ming-Chiang Li,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Request Nos. 05980300; 05980913; 05990090
Appeal Nos. 01972941; 01976066; 01976559
Agency Nos. 95-00173-006; 97-00173-006; 97-00173-007
DECISION ON REQUESTS FOR RECONSIDERATION
INTRODUCTION
On January 20, 1998, Ming-Chiang Li (hereinafter referred to as
the complainant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Ming-Chiang Li v. John H. Dalton, Secretary, Department of the Navy,
EEOC Appeal No. 01972941 (December 18, 1997). The complainant received
the decision on December 22, 1997. On June 29, 1998, the Department
of the Navy (hereinafter referred to as the agency) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Ming-Chiang Li v. John H. Dalton, Secretary, Department of
the Navy, EEOC Appeal No. 01976066 (May 22, 1998). The agency received
the decision on May 28, 1998. On October 26, 1998, complainant timely
initiated a request to the Equal Employment Opportunity Commission to
reconsider the decision in Ming-Chiang Li v. John H. Dalton, Secretary,
Department of the Navy, EEOC Appeal No. 01976559 (October 19, 1998).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation
of material fact or law; or (2) the decision will have a substantial
impact on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b).<1>
ISSUES PRESENTED
The issue presented in EEOC Request No. 05980300 is whether the previous
decision properly affirmed the agency's dismissal of one allegation
in the complaint. The issue presented in EEOC Request No. 05980913
is whether the previous decision properly remanded two allegations in
complainant's complaint for continued processing. The issue presented
in EEOC Request No. 05990090 is whether the previous decision properly
affirmed the agency's dismissal of complainant's complaint.
BACKGROUND
Complainant filed formal complaints of discrimination on February
16, 1995 (Complaint No. 95-00173-006 (Complaint 1)), May 11, 1997
(Complaint No. 97-00173-006 (Complaint 2)), and June 21, 1997 (Complaint
No. 97-00173-007 (Complaint 3)), alleging discrimination based on race
(Asian), national origin (Chinese), age (DOB 6-18-35), and reprisal.
The instant requests for reconsideration (RTR) are before us on procedural
questions.<2>
Complainant began his employment with the agency's Research Laboratory in
1984, and worked as a Physicist, GM-13, until his resignation on October
31, 1994. Beginning in 1988, complainant was the senior scientist at the
agency's radar cross-section test facility located at the Chesapeake Bay
Detachment (CBD) where he was responsible for operating, maintaining,
and collecting data. CBD was a unit within the RCS Measurement Group,
Offboard Countermeasures Branch of the Tactical Electronic Warfare
Division. Complainant was given low performance ratings for 1992 and
1993 and placed on a Performance Improvement Plan (PIP) in March 1994.
In September 1994, the agency issued him a notice of proposed removal,
and complainant subsequently resigned.
Complaint 1 (February 16, 1995)
In Complaint 1, complainant alleged that the agency discriminated
against him when, inter alia, it failed to investigate certain
matters he raised in May 1994 with the Office of Inspector General
(OIG) (hereinafter "whistle blower claim").<3> The charges sent to
the OIG repeated claims made in a letter written by complainant to
his Congressional representative in February 1992 alleging that his
superiors mismanaged funds for the agency's radar testing program and
mistreated him. In August 1994, the OIG notified complainant that it
would not investigate his claims.<4>
In an earlier decision, the Commission had directed the agency to consider
whether complainant's whistle blower claim raised a continuing violation.
EEOC Appeal No. 01955450 (November 1, 1996). Upon remand, the agency
found that this claim was an independent event without connection to
the other events alleged, that complainant knew of the event in August
1994 when the OIG informed him that it would not investigate the matter,
and that, having been brought to the attention of an EEO counselor on
April 3, 1995, in a memorandum in connection with the pending issues,
it was untimely. The previous decision, after discussing continuing
violations, agreed that complainant's whistle blower claim did not state
a continuing violation, in that, it had no nexus to his other allegations,
and was untimely raised with a counselor.
In his RTR, complainant argues that the OIG's refusal to investigate his
whistle blower claim was part of the agency's continuing discrimination
against him since 1990 and that all of his previous complaints
demonstrated ongoing discrimination by the agency.
Complaint 2 (May 11, 1997)
In this complaint, complainant claimed, inter alia, that:
(a) the agency discredited his accomplishments during his employment,
specifically, as the inventor of the Integrated Defense Electronic
Countermeasure (IDECM) System; and
(b) as a result of the above, complainant was forced to resign on October
31, 1994.<5>
The agency dismissed Issue (a), finding that it was untimely raised
with an EEO counselor, since complainant's source of information was a
November 1996 journal article. On appeal, the previous decision held
that the agency could not assume that complainant had not learned of
the information at a later time. As to Issue (b), the agency dismissed
this claim as the same as was raised in Complaint 1, supra, but the
previous decision disagreed. The previous decision found that the
extant issues accepted by the agency in Complaint 1 concerned only
the proposal to remove complainant and did not encompass a claim of
constructive discharge. The previous decision remanded both claims to
the agency for processing.
In its RTR, the agency argues that Issue (b) is part of his claim of
constructive discharge and presents documents showing that it notified
complainant that his claim of constructive discharge would be processed
as part of Complaint 1. The agency contends that Issues (a) and (b)
should be dismissed as raising the claim of constructive discharge
already accepted in Complaint 1, supra. See fn 2. In his comments in
response, complainant addresses the merits of his claims and argues that
the agency's failure to credit him with design of the IDECM system led
to his forced resignation and the failure of his whistle blower claim
before the MSPB. See fn. 3, supra.
Complaint 3 (June 21, 1997)
In Complaint 3, complainant alleged discrimination when the agency denied
him information and documents as to: (1) agency patent policies; (2)
his personal security status; (3) discovery requests made in another
proceeding; and (4) certain agency projects. The previous decision
affirmed the agency's dismissal of complainant's complaint, finding that
Issue (1) was moot, since these documents were provided to complainant
in response to a Freedom of Information Act request; Issue (3) failed to
state a claim and was a collateral attack on the conduct of Administrative
Judges in other matters;<6> and Issues (2) and (4) were untimely brought
to the attention of an EEO counselor, complainant having initially sought
the information prior to his resignation in October 1994. The decision
also found that none of these matters stated a continuing violation.
In his request for reconsideration, complainant repeats his argument
that his complaint establishes a continuing violation, that is, that
the agency acts "to spoof and victimize" him, that its actions are
systemic and continuous, and that his claims are timely. In addition,
complainant claims that he needs the documents requested to support his
other EEO complaints. The agency contends that complainant's request
fails to meet the criteria for reconsideration.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). An RTR is not merely a form of a second appeal.
Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990).
Having reviewed the record and the submissions of the parties, we find
that complainant's requests for reconsideration of the previous decisions
regarding Complaint 1 and Complaint 3 do not meet the criteria of 29
C.F.R. � 1614.405(b) and are denied. Having reviewed the record and
the submissions of the parties, we find that the agency's request for
reconsideration regarding Complaint 2 meets the criteria of 29 C.F.R. �
1614.405(b) and, upon reconsideration, find that the agency properly
dismissed complainant's claims.
Complainant's Requests for Reconsideration - Complaints 1 and 3
Complainant seeks reconsideration of the previous decisions finding
that his whistle blower claim in Complaint 1 and Complaint 3 were
properly dismissed. For the reasons that follow, we agree with the
previous decisions.
In Complaint 1, complainant complained that the agency failed to
investigate the whistle blower claim. The previous decision found that
this claim was untimely brought to the attention of an EEO counselor and
that complainant's arguments did not support a continuing violation.
This claim is an independent issue and lacks a nexus to the other
allegations in the complaint, i.e., the PIP, proposed removal, and
constructive discharge. We note, further, that the MSPB and Court of
Appeals for the Federal Circuit rejected complainant's argument that
his alleged whistle blowing activity was a contributing factor in his
resignation from the agency.
In Complaint 3, complainant complained that the agency denied him
information and documents. With regard to his claim for information on
the agency's patent policies, the agency has shown, and complainant has
not denied otherwise, that he has received the requested material.<7>
Since there is no reasonable expectation that the alleged violation
will recur, and complainant has received the information, this claim is
properly dismissed as moot. 29 C.F.R. � 1614.107(a)(5); see County of
Los Angeles v. Davis, 440 U.S. 625 (1979).
The agency dismissed Issue (3) for failure to state a claim as a
collateral attack on other proceedings and Issues (2) and (4) for untimely
contact with an EEO counselor. In our view, however, these allegations
concern information and documentation sought and denied during discovery
in hearings conducted by EEOC AJs and, as such, fail to state a claim.
A collateral attack involves a challenge to another forum's proceedings,
such as decisions in the grievance process, the EEO process in a separate
case, claims for unemployment compensation, tort claims, and workers'
benefits claims. Story v. USPS, EEOC Request No. 05960099 (December 9,
1996). Collateral attacks are not permitted by the Commission; instead,
objections to a decision in a different matter must be addressed by
enforcement or appeal of that matter. We find that complainant requested
the information sought in Issues (2), (3), and (4) in hearings before
EEOC AJs in Hearing Nos. 100-94-7998X, 100-95-7148X and 100-95-7177X.
Consequently, these allegations are impermissible collateral attacks,
were addressed in those proceedings, and are properly dismissed herein.
Harris v. Department of the Navy, EEOC Request No. 05940191 (September
22, 1994).
Agency Request for Reconsideration - Complaint 2
By letter dated April 15, 1997, the agency notified complainant that
Agency No. 95-00173-006 included a claim of constructive discharge and
that, unless he filed an appeal with the MSPB, this complaint would be
processed as a mixed case complaint. Inasmuch as complainant's claim
of constructive discharge is before the agency in another complaint,
we find that Issue (b) was properly dismissed by the agency.<8> 29
C.F.R. � 1614.107(a)(1). Mixed case complaints are processed pursuant
to 29 C.F.R. � 1614.302.
In its request, the agency contends that Issue (a) is not a separate
matter but serves as an example or background to complainant's allegation
of constructive discharge. In order to appreciate this allegation, we
consider the instant complaint in the context of other complaints filed
by complainant against the agency. In our view, the agency correctly
determined that Issue (a) is part of complainant's common grievance
against the agency that he was forced to resign.
In his complaint, complainant asserts that he is "an indisputable leader
in the radar and electronic warfare technologies," that his "inventions
are revolutionary, and answer the Navy's urgent needs with most optimum
means," that the IDECM project "is unquestionable and definitely
[his] invention," and that he has "extraordinary achievements and
accomplishments." When Issue (b) is examined in light of complainant's
assertion that the agency denied him the position and tools to perform and
that he was forced to resign from the agency, it shows that his concern
about ownership or credit for the IDECM project is best looked at as
one part of his allegation of constructive discharge. We find therefore
that Issue (b) is properly dismissed. 29 C.F.R. � 1614.107(a)(1).
Complainant's Claim of Continuing Violation
Finally, we address complainant's claim that his complaints assert
a continuing violation of discrimination such that all alleged
discriminatory actions are timely and must be addressed on their merits.
The agency denies that complainant's claims demonstrate a continuing
violation. A continuing violation serves to excuse the untimeliness of
certain of the allegations within a complaint, or related complaints,
one of which must fall within the 45-day period prior to contact with
an EEO counselor. 29 C.F.R. � 1614.105(a)(1); Rowan v. Department
of Transportation, EEOC Request No. 05940661 (February 24, 1995).
To establish a continuing violation, a complainant must show a series
of related acts, one or more of which is timely brought to the attention
of a counselor. Vissing v. Nuclear Regulatory Commission, EEOC Request
No. 05890308 (June 13, 1989).
With regard to these three complaints, none of the above issues are
dismissed solely for reasons of timeliness. Consequently, complainant's
reliance on continuing violation theory is misplaced and not appropriate
to challenge the dismissal of these allegations.
CONCLUSION
After a review of the complainant's and the agency's requests for
reconsideration, their replies thereto, the previous decisions, and
the entire records, the Commission finds that complainant's requests
fail to meet the criteria of 29 C.F.R. � 1614.405(b), and the agency's
request meets the criteria of 29 C.F.R. � 1614.405(b). It is therefore
the decision of the Commission to deny complainant's requests and to
grant the agency's request. The decision in EEOC Appeal No. 01972941
(December 18, 1997) is AFFIRMED. The decision in EEOC Appeal No. 01976066
(May 22, 1998) is VACATED, and the agency's final decision is AFFIRMED.
The decision in EEOC Appeal No. 01976559 (October 19, 1998) is AFFIRMED.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
___10-16-00_______________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Since December 1990, complainant has filed numerous complaints
challenging his treatment through his resignation in October 1994 and
subsequently.
3In June 1995, the agency accepted for investigation the other issues in
Complaint 1 that complainant failed his 1994 PIP and that he had been
issued a notice of proposed removal; in April 1997, it added his claim
of constructive discharge. Complainant was afforded appeal rights to
the Merit Systems Protection Board (MSPB).
4Thereafter, complainant filed a complaint with the Office of Special
Counsel (OSC) of the MSPB, alleging that he was given a 14-day
suspension for insubordination in July 1992 in retaliation for his
February 1992 letter to his Congressional representative. The OSC
terminated the matter without further action, and complainant filed
an Individual Right of Action with the MSPB; his claim was denied.
See MSPB No. DC 1221-95-0754-W-1 (April 14, 1997). He appealed to the
United States Court of Appeals for the Federal Circuit, which rejected
his claim of retaliation for whistle blowing activity. See No. 97-3335
(12/22/1997).
5In this complaint, complainant also alleged that (1) the agency failed to
investigate matters he referred to the Office of Inspector General (OIG)
and (2) the EEO counselor was biased. The previous decision found that
complainant had raised Issue (1) in Complaint 1, supra, and that Issue
(2) was not an independent claim, directing complainant to the agency's
EEO office. Complainant did not request reconsideration of the previous
decision, and this matter is before us on an RTR filed by the agency.
6In Hearing Nos. 100-94-7998X and 100-95-7148X, pending before the
Commission as EEOC Request No. 05980398, and Hearing No. 100-95-7177X,
pending as EEOC Appeal No. 01972275, the AJs denied, in part,
complainant's requests for documents.
7To the extent that this allegation raises issues of ownership of patents,
it is outside the Commission's purview and is properly dismissed.
See 29 C.F.R. � 1614.103.
8The agency is reminded that it is necessary to provide documentation
in support of its actions when on appeal to the Commission.