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.