Ming-Chiang Li, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 16, 2000
05980300_05980913 (E.E.O.C. Oct. 16, 2000)

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.