01A10040
08-29-2002
Chang K. Kim, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Chang K. Kim v. Department of the Navy
01A10040
08-29-02
.
Chang K. Kim,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10040
Agency No. 0000406007
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Asian), national origin (Korean), sex (male),
and reprisal for prior EEO activity when:
management solicited statements from coworkers that adversely influenced
an investigation being conducted, which created a hostile and harassing
work environment;
from June to September 1999, he was denied promotion to a GS-9 position;
beginning in May 1999, he received unfair treatment involving frequent
program changes;
his union representative was promoted to a position for which he was
not qualified; and
in February 2000, his supervisor made discriminatory comments about
complainant's origins and upbringing.
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a General Supply Specialist, GS-9 at the agency's Fleet and Industrial
Supply Center, Puget Sound, Washington. On March 2, 2000, he received a
Notice of Proposed Suspension for two incidents of inappropriate conduct.
Believing he was a victim of discrimination, complainant sought EEO
counseling and on April 7, 2000, he filed an informal EEO complaint
claiming he was subjected to �false malicious accusation; a hostile work
environment; unfair and partiality; discriminatory practice; slander;
defamation of character; and mental cruelty.� On April 10, 2000, he was
issued a Decision on Proposed Suspension and received a 15-day suspension.
On May 19, 2000, complainant filed a mixed-case appeal with the Merit
Systems Protection Board (MSPB) claiming, inter alia, that the suspension
was discriminatory. He filed his formal EEO complaint on August 2, 2000.
In a decision dated August 21, 2000, the agency dismissed complainant's
EEO complaint. The agency found that issues 1, 2, 3, and 5 had been
raised in complainant's MSPB appeal. The agency further found that
complainant had not contacted an EEO Counselor in a timely manner with
regard to issues 2, 3, 4, and 5. From this decision complainant appeals.
Complainant presents no new argument on appeal. The agency requests
that we affirm the FAD.
The Commission finds that issue 1 is inextricably intertwined with
complainant's appeal to the MSPB. The Commission has held that an
employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense,
EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States
Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad
v. United States Postal Service, EEOC Request No. 05930106 (June 25,
1993). Specifically, complainant is essentially claiming dissatisfaction
with the agency's handling of the investigation conducted in connection
with his suspension. Such a claim, however, cannot be separated from
the appeal of the suspension itself. Complainant properly appealed
his suspension in the MSPB forum. The Commission will not entertain
an attempt by complainant to raise the same claim in the EEO process in
the hope of obtaining a different outcome.
Regarding issues 3, 4, and 5, while the agency dismissed these issues
for both untimeliness and because it found the issues to have been
part of complainant's MSPB appeal, we find such allegations are more
appropriately dismissed for failure to state a claim. The regulation set
forth at 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). With regard to issue 4, such a claim does not allege that
complainant suffered a harm or loss with respect to a term, condition,
or privilege of employment and complainant is therefore not aggrieved.
With regard to issues 3 and 5, it is well-settled that, unless the conduct
is very severe, a single incident or a group of isolated incidents
will not be regarded as creating a discriminatory work environment.
See James v. Department of Health and Human Services, EEOC Request
No. 05940327 (September 20, 1994); Walker v. Ford Motor Company, 684 F.2d
1355 (11th Cir. 1982). In the present case, complainant contends that
his supervisor said to him �You must have been brought up under strict
discipline back home, eh?� We find that complainant has failed to show
that he suffered harm with respect to a term, condition, or privilege
of his employment as a result of the statement. Therefore, standing
alone, this incident fails to state a claim. Additionally, even when
viewed together with complainant's assertions that he received unfair
treatment involving frequent program changes, the claims are too isolated
and insufficiently severe to establish a hostile work environment claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Consequently, the Commission finds that these claims are
more properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim.
Regarding issue 2 we find that the agency correctly dismissed this
issue for untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). Specifically, we note that complainant claims he was
denied promotion opportunities between June and September 1999, a time
period which ends more than 45 days before his EEO Counselor contact
on April 7, 2000. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____08-29-02_____________
Date