Willy Wong, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01a00877 (E.E.O.C. Jul. 20, 2000)

01a00877

07-20-2000

Willy Wong, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Willy Wong v. United States Postal Service

01A00877

July 20, 2000

Willy Wong, )

Complainant, )

)

v. ) Appeal No. 01A00877

) Agency No. 4-C-150-0076-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated October 12, 1999, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

The record reveals that on July 19, 1999, complainant filed a formal

complaint claiming that he was the victim of unlawful employment

discrimination on the bases of his race (Chinese) and national origin

(Hispanic) when:

Since 1987, complainant has taken the test for a career position,

but has not been offered a career position; and

On March 8, 1999, complainant mailed a letter to the human resources

department regarding career employment and he has not heard from that

department.

On October 12, 1999, the agency issued a final decision dismissing

the present complaint for failure to state a claim and for raising the

same claim that is pending before or has been decided by the agency or

Commission. Specifically, with respect to claim one, the agency found

that it was identical to a claim raised by complainant in Agency Case

No. 1-C-151-1029-96. With regard to claim two, the agency found that

complainant was not an aggrieved employee by the alleged inaction.

With respect to claim one, the Commission finds that the agency has

failed to provide sufficient evidence that the elements of claim one,

in the present complaint, are identical to the claims in the prior

complaint with respect to the time, place, incident and parties involved.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in part, that the agency

shall dismiss a complaint that states the same claim that is pending

before or has been decided by the agency or Commission.

It has long been established that �identical� does not mean �similar.�

The Commission has consistently held that in order for a complaint to be

dismissed as identical, the elements of the complaint must be identical to

the elements of the prior complaint in time, place, incident, and parties.

See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890

(April 5, 1996), rev'd on other grounds EEOC Request No. 05960524 (April

24, 1997).

In Agency No. 1-C-151-1029-96, complainant alleged that he was

discriminated against when in May 1993, he failed the letter sorting

machine test and his name was taken off the hiring register and in 1995,

complainant mailed his application for the Remote Encoding Center, but

he was never tested for hire. In claim one, complainant alleged that

since 1987, he has taken the test for a career position, but has not been

offered a career position. While the prior complaint also involves a

test for a career position and two incidents when he was not offered a

position, it is unclear whether claim one in the present case refers to

more incidents than just the 1993 and 1995 incidents previously raised.

Clearly, further clarification of claim one is necessary prior to a

determination as to whether it is identical to the matters raised in

Agency Case No. 1-C-151-1029-96. Accordingly, the agency's decision

dismissing claim one is VACATED.

With respect to claim two, the regulation set forth at 64 Fed. Reg.

37,644, 37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R.

� 1614.107(a)(1)) provides, in relevant part, that an agency shall dismiss

a complaint that fails to state a claim. An agency shall accept a

complaint from any aggrieved employee or applicant for employment who

believes that he or she has been discriminated against by that agency

because of race, color, religion, sex, national origin, age or disabling

condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal

sector case precedent has long defined an "aggrieved employee" as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

The only proper questions in determining whether an allegation is

within the purview of the EEO process are (1) whether the complainant

is an aggrieved employee and (2) whether he has alleged employment

discrimination covered by the EEO statutes. An employee is "aggrieved"

if he has suffered direct and personal deprivation at the hands of the

employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133

(March 2, 1990). Here, complainant alleged that he submitted a letter

to the human resources department regarding career employment and they

never responded to his inquiry. In this case, complainant has failed to

establish that he has suffered a present harm or loss with respect to a

term, condition, or privilege of employment for which there is a remedy.

Accordingly, the agency's dismissal of claim two was proper.

For the reasons set forth herein, the Commission hereby VACATES

the dismissal of claim one and REMANDS claim one to the agency for

a supplemental investigation in accordance with the ORDER below and

applicable EEOC regulations. Th Commission AFFIRMS the dismissal of

claim two for failure to state a claim.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

The agency shall contact complainant within fifteen (15) calendar days

of the date this decision becomes final and request that he clarify

claim one. Specifically, complainant shall be requested to provide the

dates of specific incidents when he took the test for a career position

and was not offered a career position. Complainant shall be given fifteen

(15) calendar days within which to provide his response.

Thereafter, the agency shall determine whether to process claim one.

Within forty-five (45) calendar days of the date this decision becomes

final, the agency shall issue a new final decision or notice of processing

regarding claim one.

A copy of the notice requesting information from complainant and a copy

of the new final decision or notice of processing must be submitted to

the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

July 20, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.