01973933
06-10-1999
Myong S. Kim, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Myong S. Kim v. Department of the Air Force
01973933
June 10, 1999
Myong S. Kim, )
Appellant, )
) Appeal No. 01973933
v. ) Agency No. KJOU94030
) Hearing No. 360-96-8515X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision ("FAD")
concerning her equal employment opportunity ("EEO") complaint of unlawful
employment discrimination on the bases of national origin (Korean), race
(Asian), sex (female), and reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when:
(1) she received oral admonishments on January 10, 1994 and May 23, 1994;
(2) she was removed as a nominee to attend the Air Command Staff College
("ACSC"); (3) she received a rating of "Fully Successful" on her 1993-1994
performance appraisal. This appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
The record revealed that appellant, a GS-12 Computer Scientist at the
agency's Kelly Air Force Base, filed a formal EEO complaint with the
agency on July 13, 1994, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission ("EEOC") Administrative Judge ("AJ"). Following a hearing,
the AJ issued a Recommended Decision ("RD") finding no discrimination.
The AJ concluded that appellant established prima facie cases of national
origin, race, sex and reprisal discrimination. The AJ then concluded that
the agency articulated legitimate, nondiscriminatory reasons for all its
actions, namely, that: (1) the admonishments were issued after appellant
had been coached and counseled for missing deadlines and being absence
without permission; (2) appellant's supervisor determined that, due to
performance problems, appellant was not an appropriate candidate for
the ACSC; and (3) appellant's 1993-1994 performance appraisal was based
on the documented deficiencies in appellant's performance. Finally,
the AJ found that appellant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. The agency's FAD adopted the AJ's RD.
On appeal, appellant contends that the AJ erred in weighing the evidence
and recommending a finding of no discrimination.<1> The agency disputes
appellant's contentions and requests that we affirm its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We agree with the AJ and find that
appellant failed to present sufficient credible evidence demonstrating
that any of the agency's actions were based on her national origin,
race, sex or prior EEO activity. Therefore, the Commission discerns no
basis upon which to overturn the AJ's finding of no discrimination in
this matter. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision which
adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the 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 the 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 the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (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:
June 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 In attempting to establish pretext, appellant contends that the
agency's documentation of her performance problems was in violation of
the Privacy Act. However, it not the Commission's function to resolve
such issues.